Squared H Corporation DBA Ergœrotics™ Non-Exclusive Online Affiliate Partner Agreement

 

            This Agreement contains the complete terms and conditions that apply to an individual's or entity's participation in the Affiliate Program (the "Program"). As used in this Agreement, "we" and “our” means Squared H Corporation DBA Ergœrotics™ (hereinafter “Ergœrotics”), and "you" means the Affiliate. "Site" means a World Wide Web site and, depending on the context, refers either to our site (the "Ergœrotics site,” with URL “www.Ergoerotics.com") or to the site from which you will link to our site ("Affiliate site"). "Customer" means an individual or entity other than you.

 

1.         Enrollment in the Program

 

 

1.1       To begin the enrollment process, you must submit a completed Program application available on our site. We will evaluate your application and will notify you of your acceptance or rejection which shall be at our sole and exclusive discretion. Among other reasons for rejection, we may reject your application if we determine that your site is unsuitable for the Program.

 

Unsuitable sites include, without limitation, those that:

 

. are not engaged in health promotion

. promote or display sexually explicit materials involving minors

. promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age

. promote illegal activities

. violate intellectual property rights

. promote violence or display scenes of non-consensual violence between adults

. could, in any way, damage the reputation and/or goodwill of our company(s), our other affiliates, our intellectual property, and/or the Program.

 

1.1.1. If you are located outside of the region in which Ergœrotics sells products, you will only be entitled to post banners to send customers to the Ergœrotics site.  You will not be entitled to post widgets, which contain graphics with links for product purchase, on your site.

 

 

1.2       Should you be accepted into the Program, and subsequently change your site so that we, in our sole and exclusive discretion, determine that it becomes unsuitable for the Program, we may terminate this Agreement immediately and all commissions will be forfeited.

 

2.         Links on Your Site

 

2.1       Link to Ergœrotics Branded Affiliate Sites: You may provide a link on your site to our Ergœrotics “House” Branded Affiliate site(s) in a format to be approved by Ergœrotics. We will provide you with guidelines and graphical artwork to use in linking to our Ergœrotics Branded Affiliate site(s).  We may change the format(s), guidelines and/or graphics requirements from time to time as we deem commercially beneficial and upon notice of such changes, you will immediately employ a new link based upon the updated requirements and immediately discontinue use of the prior link.  We reserve the right to disable links as we deem commercially and/or technically desirable.

 

2.2       Banners and Widgets: After you have been notified that you have been accepted into the Program, you may display banners and/or widgets (“Special Links”) on your site which are links to the Ergœrotics Site.  These must be placed on your site and employed in accordance with this Operating Agreement.  Special Links permit accurate tracking, reporting, and accrual of advertising fees. Links may consist of product widgets and/or banners.  As an Associate, you may place and remove Special Links on your site and email messages at your discretion.  Product widgets may only be used if you are located in the territories in which we ship products. Our Special Links are licensed, not transferred, are and shall be and remain our property.  Upon notice, you shall immediately discontinue use of any or all of our Special Links. 

 

You may earn Affiliate Fees only as described in Section 5 and only with respect to activity on the Ergœrotics Site occurring directly through Special Links. We will have no obligation to pay you advertising fees if you fail to properly format the links on your site to the Ergœrotics Site as Special Links, including to the extent that such failure may result in any reduction of advertising fee amounts that would otherwise be paid to you under this Operating Agreement.

 

2.3       Product:  Upon acceptance into the Program, you may select one or more of our products to market on your website.  For each selected product, you will be able to generate a widget which, when installed in the code of your website, will generate a graphic on your site that contains product information such as a picture or image, description, review, other reference, and sale pricing information furnished by Ergœrotics.  Customers will be able to add products to the Ergœrotics shopping cart from your site and be notified that they are being routed to the Ergœrotics secure checkout process at that time. Product information is dynamic and may be modified by Ergœrotics. at any time.  You shall not employ these images, descriptions, reviews, etc. to promote any other goods and/or services.

 

2.4       You may link to your own affiliate branded affiliate store(s) any way you choose as long as you do not violate any other provision of this Agreement.

 

3.         Order Processing

 

            We will process, authenticate and complete product orders placed by customers through the Affiliate site to Ergœrotics, however we reserve the right to reject orders for any reason whatsoever including but not limited to unavailability of merchandise, various legal requirements and the customers’ location. We will be responsible for all aspects of order processing and fulfillment for authentic and complete orders. Among other things, we may prepare order forms; evaluate credit worthiness; process payments, cancellations, and returns; and handle customer service. We will track sales made to customers who purchase products generated from your site to the Affiliate site and will send you reports summarizing this aggregate and anonymous sales activity as required elsewhere herein. The form, content, and frequency of the reports may vary from time to time at our sole discretion. You agree that all such information shall be deemed Confidential Information, as provided below, that we shall own all such information and that you will not rent, sell, loan, barter, share or otherwise transfer or disclose such information to any third party without our prior written consent or in violation of any legal requirement. To permit accurate tracking, reporting, and fee accrual, you must ensure that the interface between your site and our site is properly formatted and functioning.

 

4.         Commissions

 

            We will pay you advertising fees on Qualifying Purchases in accordance with Section 5. Subject to the exclusions set forth below, a “Qualifying Purchase” occurs when (a) a customer clicks through a Special Link on your site to the Ergœrotics Site; (b) during a single Session that customer either (i) adds a Product to his or her shopping cart and places the order for that Product no later than 24 hours following the customer’s initial click-through, (ii) purchases a Product via our 1-Click feature, or (iii) streams or downloads a Product from the Ergœrotics Site if the Product is a Digital Product; and (c) the Product is shipped to or streamed or downloaded by, and paid for by, the customer.

 

            A "Session" begins when a customer clicks through a Special Link on your site to the Ergœrotics Site and ends upon the first to occur of the following: (x) 24 hours; (y) the customer places an order for a Product that is not a Digital Product; or (z) the customer follows a Special Link to the Ergœrotics Site that is not your Special Link.

 

            A “Digital Product” is a Product sold under any Squared H Corporation brands, including “Ergœrotics™,” “Suthe™,” “Pampered Petal™,” “Blushing Lotus™,” “The Center for Sexual Health and Rehabilitation,” or copyrighted by “Squared H Corporation” or “Dr. Heather Howard.”

 

5.         Fee Schedule

 

            You will earn commissions based on the sale price of Qualifying Purchases according to fee schedules to be established by us. "Sale price" means the total amount collected for that sale less costs for shipping, handling, taxes and tariffs, coupons, other discounts, and merchant processing fees. The current fee schedule is: 10% of the sale price, except for excluded items (of which there are currently none at this time).

 
Qualifying Purchases exclude, and we will not pay advertising fees on any of, the following:

  • any Product that, after expiration of the applicable Session, is added to a customer’s Shopping Cart, is purchased by a customer via our 1-Click feature, or is streamed or downloaded by a customer, even if the customer previously followed a Special Link from your site to the Ergœrotics Site;
  • any Product purchase that is not correctly tracked or reported because the links from your site to the Ergœrotics Site are not properly formatted;
  • any Product purchased through a Special Link by you or on your behalf, including Products you purchase through Special Links for yourself, friends, relatives, or associates (e.g., personal orders, orders for your own use, and orders placed by you for or on behalf of any other person or entity);
  • any Product purchased for resale or commercial use of any kind;
  • any Product purchased after termination of this Operating Agreement;
  • any Product order that is canceled or returned; and
  • any Product purchased by a customer who is referred to the Ergœrotics Site through any of the following:
    • a Prohibited Paid Search Placement; or
    • a link to the Ergœrotics Site, including a Redirecting Link, that is generated or displayed on a Search Engine in response to a general Internet search query or keyword (i.e., in natural, free, organic, or unpaid search results), whether those links appear through your submission of data to that site or otherwise.

Prohibited Paid Search Placement” means an advertisement that you purchased through bidding on keywords, search terms, or other identifiers (including Proprietary Terms) or other participation in keyword auctions. “Proprietary Term” means keywords, search terms, or other identifiers that include the word “Ergœrotics,” “Suthe,” “Pampered Petal,” “Blushing Lotus,” or any other trademark of Squared H Corporation or its associates or variations or misspellings of any of those words. “Redirecting Link” means a link that sends users indirectly to the Ergœrotics Site via an intermediate site or webpage and without requiring the user to click on a link or take some other affirmative action on that intermediate site or webpage. “Search Engine” means Google, Yahoo, Bing, or any other search engine, portal, sponsored advertising service, or other search or referral service, or any site that participates in any of their respective networks.

 

 

6.         Fee Payment

 

            We will pay you commissions on a monthly basis. Approximately fifteen days following the end of each calendar month, we will send you a check for the commissions earned on Qualifying Products that were shipped during that month, less any taxes that we are required by law to withhold. However, if the fees payable to you for any calendar month are less than $50.00US, we will hold those fees until the total amount due is at least $50.00 US or (if earlier) until this Agreement is terminated. If a Qualifying Product that generated a paid commission is subsequently returned by the purchaser, or if there is any type of credit or chargeback issued for such product, we will deduct the corresponding fee from your subsequent monthly payment(s). If there are no subsequent monthly payment(s) due, we may, in our sole and exclusive discretion, elect to either (a) retain such amount in reserve and apply it against future payment; or (b) require you to repay said commission within fifteen (15) days of notice of said election and you agree to repay said fees as specified above.

 

 

7.         Policies and Pricing

 

            Customers who buy products through this Program will be deemed to be customers of Ergœrotics. Accordingly, all Ergœrotics rules, policies, and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for products sold under this Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.

 

7.1.      Demo Units

 

            As an affiliate, you may wish to purchase items either for your own personal use or for demonstration pieces (“Demo Units”) in your physical store.  Affiliates may purchase one (1) Demo Unit each of up to 30 SKU items per year.  Demo Units may not be transferred for consideration, or otherwise, within one year of their date of original purchase.  No commission payments shall be due or paid for any such purchases. Transfer, with or without consideration, of any Demo Units within one year of the purchase date shall constitute a breach of this Agreement, will result in the termination of your affiliate relationship, and forfeit any commissions then or thereafter due.

 

8.         Limited License

 

 

            During your authorized participation in the Program, and subject to the terms and conditions hereof, we grant you a non-exclusive, limited, revocable right to use Ergœrotics graphics, which display images, photographs, descriptions, instructions, and pricing, exclusively to assist in generating sales of our products.  You may not reproduce or modify the descriptions, pricing, instructions, or any of our images or photographs in any way, including but not limited to cropping of any images to remove our copyright and/or trademark notice(s). We reserve all of our rights in the descriptions, pricing, instructions, any other images and photographs, our trade names and trademarks, and all other rights (hereinafter our “intellectual property” rights).  You may not copy, distribute, or otherwise deal in or exploit our intellectual property in any way, in any format now known or subsequently devised, anywhere throughout the universe, except as otherwise specifically permitted herein.  The Ergœrotics intellectual property may not be used to promote any site other than the Affiliate Site and may be used only in the context of promoting our products. You agree to use our intellectual property only:  (i) in accordance with the highest standards and of such style, appearance and quality as to be adequate and suited for exploitation to the best advantage, protection and enhancement of Ergœrotics, the Program, our products and the goodwill pertaining thereto; (ii) in accordance with all applicable international, national, federal, state and local laws, treaties and governmental orders and regulations; and (iii) in no manner reflecting adversely upon Ergœrotics, the Program, and/our products. The guidelines governing the use of this information are available at http://ergoerotics.com/content/7-affiliate-partner-agreement. We may revoke your license at any time by giving you written notice.

 

9.         Emailing

 

9.1       In accordance with Ergœrotics policy, you may send emails announcing your Affiliate Site only to people who have affirmatively opted-in to receive such email from you.   You may not send any unsolicited email (spam) or any other form of unlawful advertising at any time including but not limited to during your participation in the Program.  Any such unauthorized advertisements will result in immediate termination of this Agreement and forfeiture of all earned commissions.  You agree to indemnify and hold us harmless from any claims from any and all parties based on asserted violation(s) by you, or any third parties acting through you, including but not limited to your affiliates, of the terms of this section.

 

9.2       Affiliates must also maintain a high standard of ethics and etiquette when posting on internet newsgroups or participating in other online forums. Posting commercial announcements to newsgroups or other forums in violation of charters or terms of use prohibit such postings may result in immediate termination of this Agreement and forfeiture of all earned commissions, at Ergœrotics's discretion. (Non-commercial participation in online discussions is generally acceptable and encouraged.)

 

10.       Advertising

 

            You may not use any unlawful advertising methods in marketing the Affiliate Site or its products, including but not limited to spam e-mail, unsolicited telefax communications (junk faxes), and any other method of distributing information which is currently unlawful, or which becomes unlawful in the future.  Any such unlawful advertisement will result in immediate termination of this Agreement and forfeiture of all earned commissions. You agree to indemnify and hold us harmless from any claims from any and all parties based on asserted violation(s) by you, or any third parties acting through you, including but not limited to your affiliates, of the terms of this section.

 

11.       Termination of the Agreement

 

            The terms of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either party as provided for herein. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. You are only eligible to earn commissions on sales of Qualifying Products occurring during the term, and fees earned through the date of termination, which will occur upon the giving of notice, will remain payable only if the related orders are not canceled or returned or if payment for such orders is not charged back. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.  Additionally, this Agreement, and all licenses and rights to commissions shall automatically terminate upon: a) your filing of a voluntary or involuntary petition in Bankruptcy; b) the execution by you of an assignment for the benefit of creditors or a composition with creditors; c) your insolvency (as that term is defined under the Federal Laws of Bankruptcy); or d) the appointment of a receiver for you and/or any of your property.

 

12.       Modification

 

            We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion. Modifications may include, for example, changes in the scope of available commissions, fee schedules, payment procedures, and Program rules.

 

13.       Relationship of Parties

 

            You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. 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 otherwise, that reasonably would contradict anything in this Section.

 

14.       Limitation of Liability

 

            We will not be liable for indirect, special, or consequential damages (or any loss of revenue, profits, or data) arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total commissions payable to you under this Agreement.

 

15.       Disclaimers

 

            WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). 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.

 

16.       Independent Investigation

 

            YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT WE MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE WEB SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR WEB SITE. YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.

 

17.       Confidentiality:  You will not disclose, provide or otherwise make available to any third party, in whole or in part, any information relating to this Agreement and negotiations thereto except as expressly set forth herein.  The terms of this Agreement, the Affiliates and customers of the Program, and all other aspects of our relationship shall be kept confidential by us. Confidential Information does not include (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the recipient, or (iii) information received by recipient from a third party who was free to disclose it. You agree that you will not use, commercialize or disclose our Confidential Information to any person or entity, except to your own employees or agents having a "need to know" such information in connection with the performance of this Agreement, and to such other recipients as we may approve in a signed, written document.  Your obligations of confidentiality under this Agreement shall survive termination of this Agreement for any reason.

 

 

18.       Access to our Website(s): You authorized access to our Website(s) shall be no greater than that of any third party customer and nothing contained herein shall be deemed or inferred to grant you any such access.  You agree that you will not gain, or attempt to gain, access to any non-public portions of our Website(s) or other tangible or intellectual property. 

 

19.       Notice

 

19.1     All notices, requests, consents, and other communications required or permitted to be given to us by you hereunder shall be in writing and delivered personally or sent by certified or registered mail, postage prepaid, as follows: Ergœrotics, Inc., 1420 Jones Street, Suite 7, San Francisco CA 94109.  Any notice so given shall be deemed received when delivered personally, or, if mailed, three calendar days after deposit, postage prepaid, in the U.S. mails. 

19.2     All notices, requests, consents, and other communications required or permitted to be given to you by us hereunder may be, at our discretion, either: (a) in writing and delivered personally or sent by certified or registered mail, postage prepaid; or, (b) by e-mail to the e-mail address specified in your Program Application.  You agree to accept notice from us by e-mail at all times during and your participation in the Program.  After termination hereof, we may continue to provide you with notice via e-mail unless and until you provide us with notice that you no longer wish to receive notice via e-mail after which we will provide you with notice pursuant to sub-section (a) above. 

 

19.3     Any notice so given shall be deemed received when delivered personally, or, if mailed, three calendar days after deposit, postage prepaid, in the U.S. mails.  E-mail notices shall be deemed received upon dispatch where proof of sending is maintained.  Any party may change the address to which notices are to be sent by giving written notice of such change of address to the other parties in the manner herein provided for giving notice.

 

20.       Resolution of Disputes:

 

            You agree that any claim or dispute that you may have against Ergœrotics will be exclusively resolved through arbitration.

 

            You and Ergœrotics agree that arbitration will be the exclusive forum and remedy at equity and law for any disputes arising out of or relating to this agreement and/or your use of Ergœrotics or the Website, including any disputes concerning the validity, interpretation, violation, breach, or termination of this agreement. To the fullest extent permitted by law, you also waive any right to commence, be a party to or an actual or putative class member of any class or collective action arising out of or relating thereto. Arbitration under this agreement will be held exclusively in San Francisco, California and in accordance with the most recently effective commercial arbitration rules of the American Arbitration Association. The arbitration proceeding will be decided by a single arbitrator and the arbitrator will decide the arbitration proceeding by applying the laws and legal principles of the state of California and the federal laws of the United States. The losing party will be required to pay the prevailing party’s reasonable attorneys’ fees. You and Ergœrotics agree that both parties will be required to be present within the state of California in order to perform their obligations under this agreement, however if you reside more than 100 miles from San Francisco, California, you may appear at such proceedings telephonically. You and Ergœrotics agree to submit to the personal jurisdiction of any such arbitrator or arbitration proceeding. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction.

 

21.       Miscellaneous

 

21.1     This Agreement will be governed by the laws of the United States and the state of California without reference to rules governing choice of laws.

 

21.2     You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Any attempted assignment not in conformity herewith shall be null and void.

 

21.3     This Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.

 

21.4     Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

 

21.5     Either party shall be excused from any delay or failure in performance hereunder, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war, novelty of product manufacture or other unanticipated product development problems, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.

 

21.6     The invalidity or unenforceability of any provision hereof shall in no way affect the validity or enforceability of the remainder of this Agreement or any provision hereof.

 

21.7     If an action is brought by either of us against the other to enforce any provision of this Agreement, including, but not limited to, the collection of any fees, charges or indemnification, then the prevailing party shall be entitled to all costs and reasonable attorney’s fees in addition to any other sums due. 

                                   

21.8     You represent and warranty that you have the right to enter into this Agreement, and that your doing so will not infringe, impede, or frustrate any other contract or agreement you have with any third party.

 

21.9     This Agreement expresses the entire understanding between us and replaces any and all former agreements, understandings and representations relating in any way to the subject matter hereof.  No modifications, alterations or amendments of this Agreement shall be valid or binding unless in writing and signed by the party to be charged with such modification, alteration or amendment.

 

 

PRIVACY STATEMENT

 

Confidentiality is a cornerstone of our business. Ergœrotics is committed to respecting and protecting the privacy of its clients.

 

Unlike many online businesses, we do NOT sell or rent access to customer or affiliate mailing lists or databases to other companies. We will not share ordering information with anyone outside the company, unless compelled to do so by a court order. 

 

For our customers, we have taken extensive measures to make our online ordering systems secure. All exchange of personal data takes place in secure browser environments, and data is stored in encrypted formats behind a firewall. We employ outside security analysis firms to check our work on a routine basis. 

 

All orders from Ergœrotics and our co-branded affiliate stores are shipped in plain packaging using a return address of "Shipping Manager."

 

Charges to customer credit card statements will appear as "PAYPAL *ERGO-SQUARH".


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