Affiliate Terms of Service & Agreement

This Independent Contractor Agreement (hereinafter “Agreement”) is entered into as of March 31th, 2017 by and between BiogenX Medical, Inc (Hereinafter “Company”) and the user of this system (hereinafter “Contractor”).

In consideration of the terms and covenants of this agreement, and other valuable consideration, the parties agree as follows:

WHEREAS, Company requests Contractor to perform the below listed services and may request Contractor to perform other services in the future;

WHEREAS, the Company and Contractor desire to enter into an agreement, which will define respective rights and duties as to all services to be performed;

NOW, THEREFORE, in consideration of covenants and agreements contained herein, the parties hereto agree as follows:

1.0  Services

Contractor shall provide Company with services (the “Services”), which shall include, without limitation:

1.1  Services.  Refer new members (hereinafter “Members”) to Company services. Duties include but may not be limited to, cold calling, surveying, educating, and all types of correspondence to individuals or places of business. The Contractor understands that all new memberships sold are subject to Company management approval. Contractor may not represent the Company in any capacity at any public or private events such as conferences, trade shows or any other public or private event without Company’s written consent. Contractor shall receive training as directed by the Company’s Board of Directors.

1.2  Relationship of the Parties.  Contractor enters into this Agreement as, and shall continue to be, an independent contractor. All Services shall be performed only by Contractor and not Contractor’s employees unless written permission is given by Company. Under no circumstances shall Contractor, or any of Contractor’s employees, look to Company as his/her employer, or as a partner, agent or principal. Neither Contractor, nor any of Contractor’s employees, shall be entitled to any benefits accorded to Company’s employees, including but without limitation to worker’s compensation, disability insurance, vacation or sick pay. Contractor shall be responsible for providing, at Contractor’s expense, and in Contractor’s name, unemployment, disability, worker’s compensation and other insurance, as well as licenses and permits usual or necessary for conducting the Services.

Contractor shall have authority to act as agent for, or on behalf of, Company, or to represent Company in only the matters set forth in this agreement.

Contractor shall not be entitled to worker’s compensation, retirement, insurance or other benefits afforded to employees of Company.

1.3  Conduct.  The Contractor agrees to always conduct themselves in a professional manner. The Contractor agrees when presenting the Company’s products and services to only use the approved Company literature, sales and marketing materials, website, presentation, sales tools and/or other marketing or sales material the Company may develop at its discretion. The Contractor agrees to only use the approved names, logos, taglines in the format as determined by the Company. The Contractor may not assign any rights or delegate any duties under the Agreement without the prior written approval of the Company. The Contractor expressly agrees that Contractor will not engage in unlawful conduct, accept bribes, falsify contracts, misrepresent the Company’s interests, discriminate against protected classes, or engage in any other unlawful activity and that such conduct and acts constitute an immediate breach of contract. Furthermore, any criminal, illegal, discriminatory or other behavior prohibited by law will result in immediate termination of this Agreement.

1.4  Qualifications.  Contractor represents and warrants to Company he/she will have sufficient expertise, training and experience to accomplish the Services.

1.5  Liability.  The Company and its directors, officers, shareholders, employees, assigns, and agents shall not be liable for any actions taken by Contractor in the course of performing any and all services either expressly stated or not stated within this agreement.

2.0  Electronic Services & Terms of Use – Operating Agreement

This Affiliates Program Operating Agreement (“Operating Agreement”) contained within Section 2 of this Agreement, contains the terms and conditions that govern your participation in Company Online Affiliate Program (the “Program”). “We,” “us,” or “our” means Company or any of its affiliate companies (excluding those that sell retail products), as the case may be. “You” or “your” means the applicant. A “site” means a website. “Blog site” means the www.BiogenXMedical.com or www.BiogenX.net site. “Your site” means any site(s) and any software application(s) that you link to the blog site.

BY SIGNING UP FOR THE AFFILIATE PROGRAM YOU AGREE TO THE TERMS AND CONDITIONS OF THIS OPERATING AGREEMENT, OR BY CONTINUING TO PARTICIPATE IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE BLOG SITE, YOU (A) AGREE TO BE BOUND BY THIS OPERATING AGREEMENT; (B) ACKNOWLEDGE AND AGREE THAT YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS EXPRESSLY SET FORTH IN THIS OPERATING AGREEMENT; AND (C) HEREBY REPRESENT AND WARRANT THAT YOU ARE LAWFULLY ABLE TO ENTER INTO CONTRACTS (E.G., YOU ARE NOT A MINOR) AND THAT YOU ARE AND WILL REMAIN IN COMPLIANCE WITH THIS OPERATING AGREEMENT, INCLUDING THE AFFILIATE PROGRAM REQUIREMENTS. IN ADDITION, IF THIS OPERATING AGREEMENT IS BEING AGREED TO BY A COMPANY OR OTHER LEGAL ENTITY, THEN THE PERSON AGREEING TO THIS OPERATING AGREEMENT ON BEHALF OF THAT COMPANY OR ENTITY HEREBY REPRESENTS AND WARRANTS THAT HE OR SHE IS AUTHORIZED AND LAWFULLY ABLE TO BIND THAT COMPANY OR ENTITY TO THIS OPERATING AGREEMENT.

2.1  Description of the Program.  The purpose of the Program is to permit you to advertise Products on your site and to earn advertising fees or commissions for Qualifying Purchases (defined in Section 7) made by your end users. A “Product” is any item or service sold on the Blog site, other than any product that is listed on this page collectively, “Excluded Products“).  In order to facilitate your advertisement of Products, we may make available to you data, images, text, link formats, widgets, links, and other linking tools, and other information in connection with the Program (“Content”). Content specifically excludes any data, images, text, or other information or content relating to products offered on any site other than the Blog site.

2.2  Enrollment.  To begin the enrollment process, you must sign up at the appropriate affiliate link. We may reject your affiliation if we determine that your site is unsuitable.
Unsuitable sites include those that:
(a) promote or contain sexually explicit materials;
(b) promote violence or contain violent materials;
(c) promote or contain libelous or defamatory materials;
(d) promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation, or age;
(e) promote or undertake illegal activities;
(f) include any trademark of this blog or its affiliates, or a variant or misspelling of a trademark of This blog or its affiliates, in any domain name, subdomain name, or in any username, group name, or other identifier on any social networking site or
(g) otherwise violate intellectual property rights.

2.3  Links on Your Site.  You may display Special Links on yoursite. “Special Links” are links to the Blog site that you place on your site in accordance with this Operating Agreement, that properly utilize the special “tagged” link formats we provide, and that comply with the requirements herein. Links permit accurate tracking, reporting, and accrual of advertising fees. You may earn advertising fees only as described in Section 7 and only with respect to activity on the Blog 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 Blog 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.

2.4  Program Requirements.  By participating in the Program, you agree that you will comply with all pages, schedules, policies, guidelines, and other documents and materials referenced in this Operating Agreement (collectively, “Operational Documentation”).  You will provide us with any information that we request to verify your compliance with this Operating Agreement or any Operational Documentation. In addition to any other rights or remedies available to us, we may terminate this Operating Agreement, withhold (and you agree you are not eligible for) any advertising fees payable to you under this Operating Agreement, or both, if we determine that you or other persons that we determine are affiliated with you or acting in concert with you (whether in respect to any existing or previously terminated Affiliates account: have not complied with any requirement or restriction or have otherwise violated this Operating Agreement;

In addition, you hereby consent to us: sending you emails relating to the Program from time to time;
monitoring, recording, using, and disclosing information about your site and visitors to your site that we obtain in connection with your display of Special Links (e.g., that a particular customer clicked through a Special Link from your site before buying a Product on the Blog site) and monitoring, crawling, and otherwise investigating your site to verify compliance with this Operating Agreement and the Operational Documentation.

2.5  Responsibility for Your Site.  You will be solely responsible for your site, including its development, operation, and maintenance and all materials that appear on or within it. For example, you will be solelyresponsible for:
the technical operation of your site and all related equipment; displaying Special Links and Content on your site in compliance with this Operating Agreement and the Operational Documentation and any agreement between you and any other person or entity (including any restrictions or requirements placed on you by any person or entity that hosts your site); creating and posting, and ensuring the accuracy, completeness, and appropriateness of, materials posted on your site (including all Product descriptions and other Product-related materials and any information you include within or affiliate with Special Links); using the Content, your site, and the materials on or within your site in a manner that does not infringe, violate, or misappropriate any of our rights or those of any other person or entity (including copyrights, trademarks, privacy, publicity or other intellectual property or proprietary rights); disclosing on your site accurately and adequately, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including us and other advertisers) may serve content and advertisements, collect information directly from visitors, and place or recognize cookies on visitors’ browsers; and any use that you make of the Content and the This blog Marks, whether or not permitted under this Operating Agreement. We will have no liability for these matters or for any of your end users’ claims relating to these matters, and you agree to defend, indemnify, and hold us, our affiliates and licensors, and our and their respective employees, officers, directors, and representatives, harmless from and against all claims, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) relating to (a) your site or any materials that appear on your site, including the combination of your site or those materials with other applications, content, or processes; (b) the use, development, design, manufacture, production, advertising, promotion, or marketing of your site or any materials that appear on or within your site, and all other matters described in this Section 5; (c) your use of any Content, whether or not such use is authorized by or violates this Operating Agreement, any Operational Documentation, or applicable law; (d) your violation of any term or condition of this Operating Agreement or any Operational Documentation; or (e) your or your employees’ negligence or willful misconduct

2.6  Order Processing.  We will process Product orders placed by customers who follow Special Links from your site to the Blog site. We reserve the right to reject orders that do not comply with any requirements on the Blog site, as they may be updated from time to time. We will track Qualifying Purchases (defined in Section 7) for reporting and advertising fee accrual purposes and will make available to you reports summarizing those Qualifying Purchases.

2.7  Commissions.  We will pay you commission on Qualifying Purchases in accordance with Section 4 of this Agreement. Subject to the exclusions set forth below, a “Qualifying Purchase” occurs when the customer purchases through the provided special link.

Qualifying Purchases exclude, and we will not pay commissions on any of, the following:
any Product purchase that is not correctly tracked or reported because the links from your site to the Blog 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 affiliates (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 Blog site through any of the following: a Prohibited Paid Search Placement; or a link to the Blog 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. “Redirecting Link” means a link that sends users indirectly to the Blog 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.

2.8  Policies and Pricing.  Customers who buy products through this Program are our customers with respect to all activities they undertake in connection with the Blog site. Accordingly, as between you and us, all pricing, terms of sale, rules, policies, and operating procedures concerning customer orders, customer service, and product sales set forth on the Blog site will apply to those customers, and we may change them at any time.

2.9  Identifying Yourself as an Affiliate.  You will not issue any press release or make any other public communication with respect to this Operating Agreement, your use of the Content, or your participation in the Program. You will not misrepresent or embellish the relationship between us and you (including by expressing or implying that we support, sponsor, endorse, or contribute to any charity or other cause), or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Operating Agreement. You must, however, clearly state the following on your site: “[Insert your name] is a participant in the this blog’s affiliate Program, an affiliate advertising program designed to provide a means for sites to earn advertising fees by advertising and linking to [insert the applicable site name (this blog.com)].”

2.10  Limited License.  Subject to the terms of this Operating Agreement and solely for the limited purposes of advertising Products on, and directing end users to, the Blog site in connection with the Program, we hereby grant you a limited, revocable, non-transferable, non-sublicensable, non-exclusive, royalty-free license to (a) copy and display the Content solely on your site; and (b) use only those of our trademarks and logos that we may make available to you. The license set forth in this Section 11 will immediately and automatically terminate if at any time you do not timely comply with any obligation under this Operating Agreement or any Operational Documentation, or otherwise upon termination of this Operating Agreement. In addition, we may terminate the license set forth in this Section 11 in whole or in part upon written notice to you. You will promptly remove from your site and delete or otherwise destroy all of the Content and this blog Marks with respect to which the license set forth in this Section 11 is terminated or as we may otherwise request from time to time.

2.11  Reservation of Rights; Submissions.  Other than the limited licenses expressly set forth in Section 11, we reserve all right, title and interest (including all intellectual property and proprietary rights) in and to, and you do not, by virtue of this Operating Agreement or otherwise, acquire any ownership interest or rights in or to, the Program, Special Links, link formats, Content, any domain name owned or operated by us or our affiliates, Operational Documentation, our and our affiliates’ trademarks and logos (including the This blog Marks), and any other intellectual property and technology that we provide or use in connection with the Program. If you provide us or any of our affiliates with suggestions, reviews, modifications, data, images, text, or other information or content about a product or in connection with this Operating Agreement, any Content, or your participation in the Program, or if you modify any Content in any way, (collectively, “Your Submission“), you hereby irrevocably assign to us all right, title, and interest in and to Your Submission and grant us (even if you have designated Your Submission as confidential) a perpetual, paid-up royalty-free, nonexclusive, worldwide, irrevocable, freely transferable right and license to (a) use, reproduce, perform, display, and distribute Your Submission in any manner; (b) adapt, modify, re-format, and create derivative works of Your Submission for any purpose; (c) use and publish your name in the form of a credit in conjunction with Your Submission (however, we will not have any obligation to do so); and (d) sublicense the foregoing rights to any other person or entity. Additionally, you hereby warrant that: (y) Your Submission is your original work, or you obtained Your Submission in a lawful manner; and (z) our and our sub-licensees’ exercise of rights under the license above will not violate any person’s or entity’s rights, including any copyright rights. You agree to provide us such assistance as we may require to document, perfect, or maintain our rights in and to Your Submission.

2.12  Compliance with Laws.  In connection with your participation in the Program you 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 you, including laws (federal, state, or otherwise) that govern marketing email (e.g., the CAN-SPAM Act of 2003).

2.13  Term and Termination.  The effectiveness of this Agreement shall not commence until the Contractor’s Affiliate Program Application is accepted by the Company. This Agreement shall remain in full force and effect until terminated by the Contractor or by the Company. Either the Owner or the Recipient may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination in compliance with this Agreement.

Either you or we may terminate this Operating Agreement at any time, with or without cause, by giving the other party written notice of termination. Notices sent hereunder shall be via Email to the Contractor at the Email address indicated in the Contractor Affiliate Program Application. Any and all notices to the Contractor via Email at such address shall be deemed to be effective notice to the Contractor for all purposes.  Upon any termination of this Operating Agreement, any and all licenses you have with respect to Content will automatically terminate and you will immediately stop using the Content and promptly remove from your site and delete or otherwise destroy all links to the Blog site, all this blog advertisements, all other Content, and any other materials provided or made available by or on behalf of us to you under this Operating Agreement or otherwise in connection with the Program. We may withhold accrued unpaid advertising fees for a reasonable period of time following termination to ensure that the correct amount is paid (e.g., to account for any cancelations or returns). Upon any termination of this Operating Agreement, all rights and obligations of the parties will be extinguished, except that the rights and obligations of the parties under Sections 5, 9, 10, 12, 13, 14, 16, 17, 18, 19, and 20, together with any accrued but unpaid payment obligations of us under this Operating Agreement, will survive the termination of this Operating Agreement. No termination of this Operating Agreement will relieve either party for any liability for any breach of, or liability accruing under, this Operating Agreement prior to termination.  The Contractor will forfeit all rights to receive past commissions that may have accrued to the Contractor if this Agreement is terminated as a result of the Contractor’s failure to comply with the terms of this Agreement or any policies and procedures of Affiliate Program that may be established and amended by the Company in its discretion from time to time.

2.14  Modification.  We may modify any of the terms and conditions contained in this Operating Agreement (and any Operational Documentation) at any time and in our sole discretion by posting a change notice, revised agreement, or revised Operational Documentation on the this blog.com site.

IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS OPERATING AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE, REVISED OPERATING AGREEMENT, OR REVISED OPERATIONAL DOCUMENTATION ON THE THIS BLOG.COM SITE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.

2.15  Relationship of Parties.  You and we are independent contractors, and nothing in this Operating Agreement or the Operational Documentation will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and us or our respective affiliates. You will have no authority to make or accept any offers or representations on our or our affiliates’ behalf.

You will not make any statement, whether on your site or otherwise, that contradicts or may contradict anything in this section. If you authorize, assist, encourage, or facilitate another person or entity to take any action related to the subject matter of this Operating Agreement, you will be deemed to have taken the action yourself.

2.16  Limitation of Liability.  WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, OPERATIONAL DOCUMENTATION, THE BLOG SITE, OR THE SERVICE OFFERINGS (DEFINED BELOW), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS OPERATING AGREEMENT, THE PROGRAM, THE BLOG SITE, AND THE SERVICE OFFERINGS WILL NOT EXCEED THE TOTAL ADVERTISING FEES PAID OR PAYABLE TO YOU UNDER THIS OPERATING AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY OCCURRED.

2.17  Disclaimers.  THE PROGRAM, THE BLOG SITE, ANY PRODUCTS AND SERVICES OFFERED ON THE BLOG SITE, ANY SPECIAL LINKS, LINK FORMATS, OPERATIONAL DOCUMENTATION, CONTENT, RACHELBRENKE.COM  AND OUR AFFILIATES’ TRADEMARKS AND LOGOS (INCLUDING THE THIS BLOG MARKS), AND ALL TECHNOLOGY, SOFTWARE, FUNCTIONS, MATERIALS, DATA, IMAGES, TEXT, AND OTHER INFORMATION AND CONTENT PROVIDED OR USED BY OR ON BEHALF OF US OR OUR AFFILIATES OR LICENSORS IN CONNECTION WITH THE PROGRAM (COLLECTIVELY THE “SERVICE OFFERINGS“) ARE PROVIDED “AS IS.” NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT TO THE SERVICE OFFERINGS. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, WE AND OUR AFFILIATES AND LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SERVICE OFFERINGS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE ANY SERVICE OFFERING, OR MAY CHANGE THE NATURE, FEATURES, FUNCTIONS, SCOPE, OR OPERATION OF ANY SERVICE OFFERING, AT ANY TIME AND FROM TIME TO TIME. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WARRANT THAT THE SERVICE OFFERINGS WILL CONTINUE TO BE PROVIDED, WILL FUNCTION AS DESCRIBED, CONSISTENTLY OR IN ANY PARTICULAR MANNER, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS. NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR (A) ANY ERRORS, INACCURACIES, OR SERVICE INTERRUPTIONS, INCLUDING POWER OUTAGES OR SYSTEM FAILURES; OR (B) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF, OR DELETION, DESTRUCTION, DAMAGE, OR LOSS OF, YOUR SITE OR ANY DATA, IMAGES, TEXT, OR OTHER INFORMATION OR CONTENT. NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US OR FROM ANY OTHER PERSON OR ENTITY OR THROUGH THE PROGRAM, CONTENT, OPERATIONAL DOCUMENTATION, THE BLOG SITE, OR THE AFFILIATE-PROGRAM.THIS BLOG.COM SITE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS OPERATING AGREEMENT. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (X) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (Y) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (Z) ANY TERMINATION OF THIS OPERATING AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.

2.18  Disputes.  Any dispute relating in any way to the Program or this Operating Agreement will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law and the laws of the state of Washington, without regard to principles of conflict of laws, will govern this Operating Agreement and any dispute of any sort that might arise between you and us.

There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Operating Agreement as a court would. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at  www.adr.org  or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $500 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration, we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights. Notwithstanding anything to the contrary in this Operating Agreement, we may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of our or any other person or entity’s intellectual property or proprietary rights. You further acknowledge and agree that our rights in the Content are of a special, unique, extraordinary character, giving them peculiar value, the loss of which cannot be readily estimated or adequately compensated for in monetary damages.

2.19  Miscellaneous.  You acknowledge and agree that we and our affiliates may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Operating Agreement or operate sites that are similar to or compete with your site. You may not assign this Operating Agreement, by operation of law or otherwise, without our express prior written approval. Subject to that restriction, this Operating Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns.

Our failure to enforce your strict performance of any provision of this Operating Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Operating Agreement.   Whenever used in this Operating Agreement, the terms “include(s),” “including,” “e.g.,” and “for example” mean, respectively, “include(s), without limitation,” “including, without limitation,” “e.g., without limitation,” and “for example, without limitation.” Any determinations or updates that may be made by us, any actions that may be taken by us, and any approvals that may be given by us under this Operating Agreement, may be made, taken, or given in our sole discretion.

3.0 Changes

3.1  Change Orders.  The Company, without invalidating this Agreement, may order changes in the work or services within the general scope of the Agreement.

3.2  Adjustments to Compensation.  In the event that any such changes referenced in Item 3.1 materially impact the cost to the Contractor of performing the Services or the time required for such performance, the Contractor understands and accepts there may be a change in compensation for that particular account or transaction.

3.3  Adjustments to Agreement.  Company may change the Agreement at any time for any reason. Contractor has the option to accept or deny the new terms. If Contractor denies the new terms they must do so in writing. Contractor understand that denying the new Agreement terms will terminate the Agreement and relationship between Company and Contractor. Contractor understands that by terminating the Agreement Contractor is forfeiting any future commissions. A non-response is acceptance to the new terms and conditions.

4.0 Compensation & Payment

4.1  Definitions.

  1. Membership (Hereinafter “Membership”): Paid access to Company services for a set period of time. A membership is only created after funds are collected from Member by Company. The membership is then considered activated or active.
  2. Member (Hereinafter “Member”): An individual that is a paying member of Company services.
  3. Membership Fee (Hereinafter “Membership Fees”): The monthly or annual fees collected from Member by Company.
  4. Setup Fee: A one-time fee collected at the time of the execution of the contract. Contractor may elect to waive the setup fee but this fee will be deducted from the Membership Commission paid to Contractor.
  5. Trial Membership: A temporary Membership free of charge.
  6. Frozen Membership: A suspended membership to which Company is not collecting monthly membership fees and Contractor may NOT collect commissions.
  7. Monthly Membership: Membership that is paid for on a monthly basis.
  8. Annual Membership: Membership that is paid for on an annual basis.
  9. Pay Period (Hereinafter “Pay Period”): A Pay Period is defined as one week.
  10. Pay Date: The last business day of a Pay Period.
  11. A charge back (Hereinafter “Charge Back”) is a commission that Contractor owes back to Company.
  12. Consultant (Hereinafter “Consultant”): An independent contractor conducting sales services for Company.

4.2  Commission & Disbursements.  The work performed by Contractor shall be compensated on a commission only basis as set out in Section 4 of this Agreement. Commissions will be processed every Monday following the receipt of funds from a Member (Hereinafter “Processing Date”) for the previous week and disbursed on the Pay Date of the second Pay Period following the Processing Date. When the Processing Date falls on a holiday the commissions will be processed the next business day and commissions will be disbursed on the Pay Date of the second Pay Period following the Processing Date.

4.3  Commissions.  Contractor is paid on a commission only basis.

Membership Commission: A fee for Memberships sold as a direct result of Contractor’s Services. One-time commission paid as follows:

Monthly Membership Commission: Contractor will receive a $25 commission for each monthly Membership contracted at regular price. Payable at the end of the second calendar month following the collection of fees by Company.

Membership Residual Commission:

Recurring Monthly Memberships: A $25 commission will be paid for each month the Membership is renewed or continued at regular price. Residual commission is initiated on the last Pay Date of the second calendar month of a Member’s paid service and every month thereafter as long as the Member’s account remains active.

Residual Commission Terms: Contractor will be paid residual commissions as long as all of the following criteria is met:

Paid Memberships acquired by Company as a direct result of Contractor’s Services remain active without interruptions such as a cancelled or Frozen Membership. Cancelled or Frozen Memberships are no longer eligible for commission. If Member cancels or freezes their Membership and resumes within ninety (90) days, Contractor will resume all commissions on that Member. If the Member should resume their paid Membership after an inactive (unpaid) period of more than ninety (90) days, Contractor is no longer eligible for commission on that Member.

 

4.4  Stipulations.  No commissions of any type are paid and no sale will be counted during a frozen, free or trial period, and will not initiate until the Member funds have been received by Company. In order for a Member’s account to remain active they must pay their Membership Fees on time. All commissions are payable until Company or Contractor terminates the relationship between Company and Contractor or until a Membership is cancelled or frozen by the Member.

4.5  Payments.  All due payments will be made by Company to Contractor as set forth in paragraphs above and are only initiated after all rescission, grace and trial periods have ended.

4.6  Taxes.  Company shall not be responsible for federal, state and local taxes derived from the Contractor’s net income or for the withholding and/or payment of any federal, state and local income and other payroll taxes, workers’ compensation, disability benefits or other legal requirements applicable to Contractor.

4.7  Charge Backs.  If a Contractor receives compensation and the Member cancels their service within the 3 day Right to Cancel period, trial period or money back guarantee period, there will be a Charge Back to the Contractor for an amount equal to all commission paid to Contractor on that Member to that point and may affect residual commissions.

5.0 Membership Pricing

5.1  Pricing.  Contractor agrees to Membership pricing table below. Contractor may not promise any discounts or promotions that differ from the table below to any prospective new Member unless Company expressly gives that permission to Contractor in writing. Company may change pricing at any time for any reason with written notice.

5.2  Table.

Membership Type Price (Per Month) Commission
Testosterone: In Clinic $249.95 $25
Testosterone: Home $199.95 $25
Estrogen: In Clinic $249.95 $25
Estrogen: Home $199.95 $25
SERMORELIN $299.95 $25

 

* Company may change pricing and commissions at any time. Company may also other services and membership types.
6.0 Expenses

6.1  Payment.  Company is not liable for any expenses incurred by performance of the Services on behalf of the Company. Contractor decides how to best provide the Services.

7.0 Representations and Warranties

The Company and the Contractor respectively represents and warrants to each other that each respectively is fully authorized and empowered to enter into the Agreement and that their entering into the Agreement and to each parties’ knowledge the performance of their respective obligations under the Agreement will not violate any agreement between the Company or the Contractor respectively and any other person, firm or organization or any law or governmental regulation.

8.0 Confidential Information

Contractor shall not, during the time of rendering services to the Company or thereafter, disclose to anyone other than authorized employees of the Company (or persons designated by such duly authorized employees of the Company) or use for the benefit of Contractor and its employees or for any entity other than the Company, any information of a confidential nature, including but not limited to, information relating to: any such materials or intellectual property; any of the Company projects or programs; the technical, commercial or any other affairs of the Company; business mechanisms and processes of Company; any information coming from any of Company’s meetings Contractor attends or any meeting Contractor attends on behalf of Company; or, any confidential information which the Company has received from a third party.

9.0 Intellectual Property

9.1  Work Product.  During the course of performing the Services, Contractor and its directors, officers, employees, or other representatives may, independently or in conjunction with Company, develop information, produce work product, or achieve other results for Company in connection with the Services it performs for Company.

9.2  Inventions.  The Contractor agrees and recognizes that any “invention” including but not limited to other selling materials, supplies, forms, lists or leads made for the use of the Company while the Contractor is performing services on behalf of the Company or is under obligation by this Agreement wherein the invention could benefit the Company, such invention will be solely and wholly the property of the Company.  Contractor agrees that Contractor will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assign to the Company, or its designee, all my right, title, and interest in and to any and all inventions, original works of authorship, developments, concepts, improvements, designs, discoveries, ideas, trademarks, or trade secrets, whether or not patentable or registrable under patent, copyright, or similar laws, which Contractor may solely or jointly conceive or develop or reduce to practice, or cause to be conceived or developed or reduced to practice, during the period of time Contractor is in the services of the Company (including during Contractor’ off-duty hours), or with the use of the Company’s equipment, supplies, facilities, or Company Confidential Information (collectively referred to as “Inventions”).

9.3  Ownership. Contractor agrees that such information, work product, and other results, systems and information developed by Contractor and/or Company in connection with such Services (hereinafter referred to collectively as the “Work”) shall, to the extent permitted by law, be a “work made for hire” and shall remain the sole and exclusive property of Company.

9.4  Assignment of Interest.  To the extent any Work Product is not deemed to be a work made for hire, Contractor with effect from creation of any and all Work Product, hereby assigns, and agrees to assign, to Company all right, title and interest in and to such Work Product, including but not limited to copyright, all rights subsumed thereunder, and all other intellectual property rights, including all extensions and renewals thereof.

9.5  Moral Rights.  Contractor also agrees to waive any and all moral rights relating to the Work Product, including but not limited to, any and all rights of identification of authorship and any and all rights of approval, restriction or limitation on use, and subsequent modifications.

9.6  Assistance.  Contractor further agrees to provide all assistance reasonably requested by Company, both during and subsequent to the Term of this Agreement, in the establishment, preservation and enforcement of Company’s rights in the Work Product.

9.7  Return of Property.  Upon the termination of this Agreement, Contractor agrees to deliver promptly to Company all printed, electronic, audio-visual, and other tangible manifestations of the Work Product, including all originals and copies thereof.

10.0 Non-Solicitation

During the term of this Agreement and for one year after any termination of this Agreement, Contractor will not, without the prior written consent of the Company, either directly or indirectly, on Contractor’s own behalf or in the service or on behalf of others, solicit or attempt to solicit, divert or hire away any person employed by the Company, or any customer of the Company.

11.0 Term

This Agreement shall commence on the date and year first above written and shall continue for a period of one year unless earlier terminated in accordance with this Agreement. It will automatically renew each year until either Contractor or Company terminates the relationship in writing.

12.0 Termination

12.1  Notice of Termination.  This Agreement may be terminated by Company at any time for any reason.

12.2  Payment Upon Termination.  Contractor will be paid for all Service performed through the date of termination. Once Contractor’s services have been terminated by Company the Contractor is no longer eligible for any commissions of any kind.

13.0 Indemnification

13.1  Indemnification by Contractor.  The Contractor hereby indemnifies and holds the Company, and all of the Company stockholders, officers, directors, employees, contractors, affiliates, agents, successors and assigns harmless from and against any and all claims, liabilities, damages, actions, causes of action, suits, threats, demands, settlements, including all costs and attorney fees related thereto, that the Company may incur and which are based in whole or in part upon the Contractor participation in the Affiliate Program, any claims that any of the Contractor trademarks and other proprietary material infringe upon the rights of any other party, the Contractor breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies of participation in the Affiliate Program, any claim related directly or indirectly to the Contractor use, operation or the content of the Contractor’s web site, any claim related directly or indirectly to the negligent, grossly negligent, or intentional act or omission of Contractor or its directors, officers, employees, agents or contractors, and/or any claim related directly or indirectly to Contractor’s failure to perform any of its obligations under this Agreement.

13.2  Notification.  Company will promptly notify Contractor of any claim for indemnification.

13.3  Survival.  Contractor’s obligations under Section 12 shall survive termination or expiration of this Agreement.

14.0 General Provisions

14.1  Entire Agreement.  This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements, representations and understandings of the parties, written or oral.

14.2  Counterparts.  This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.

14.3  Amendment.  This Agreement may be amended only by written agreement of the parties.

14.4  Notices.  All notices permitted or required under this Agreement shall be in writing and shall be delivered in person or mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.

14.5  Assignment.  This Agreement shall not be assigned by either party without the consent of the other party.

14.6  Governing Law.  This Agreement shall be governed by and construed in accordance with the laws of the state of California and the United States of America.

14.7  No Waiver of Rights.  A failure or delay in exercising any right, power or privilege in respect of this Agreement will not be presumed to operate as a waiver, and a single or partial exercise of any right, power or privilege will not be presumed to preclude any subsequent or further exercise, of that right, power or privilege or the exercise of any other right, power or privilege.

15.0 Notices

Notices to the Company shall be by certified mail, return receipt requested addressed to Company’s address. Notices to the Contractor shall be by Email addressed to the Email address that the Contractor provided to the Company in the Recipient Affiliate Program Application or by posting such notices on the Affiliate section of the Company’s web site. It shall be the Contractor’s responsibility to check the Affiliate section of the Company’s web site periodically to monitor all notices set forth thereon.

IN WITNESS WHEREOF, the Company and the Contractor have each executed and delivered this Agreement as of the Effective Date noted in Section 1.0 of this Agreement.