At PHARMSTRONG, we are excited and honored to work with you. The following agreement is designed to protect you, an affiliate, as well as the PHARMSTRONG brand. Please review it and feel free to ask any questions.
Melissa Dugan, CEO, Pharmstrong
THE AFFILIATE AGREEMENT
PLEASE READ THE ENTIRE AGREEMENT. YOU MAY PRINT THIS PAGE FOR YOUR RECORDS. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND PHARMSTRONG, LLC. BY SUBMITTING THE ONLINE APPLICATION YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
1. Overview. This Agreement contains the complete terms and conditions for becoming an affiliate in PHARMSTRONG’s Affiliate Program. The purpose of this Agreement is to allow linking between your website and promotional channels and PHARMSTRONG.
2. Affiliate Obligations. 2.1. To begin the enrollment process, you submit the Pharmstrong Affiliate online application. We review each application within 24 hours. We can decline any application at our sole discretion. We can remove you from our Affiliate Program if we determine that your site selected for promotion or linked to is not fitting to our brand, including but not exclusive to: 2.1.1. Promotes sexually explicit materials 2.1.2. Promotes violence 2.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age 2.1.4. Promotes illegal activities 2.1.5. Incorporates any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law 2.1.6. Includes “PHARMSTRONG” or variations or misspellings thereof in its domain name 2.1.7. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion. 2.1.8. Contains software that has the ability to divert of commission from other affiliates in our program or cannibalize existing sales. 2.1.9. Misleads the consumer with a website property that closely resembles our website nor design your website in a manner which leads customers to believe you are PHARMSTRONG. 2.2. As a member of PHARMSTRONG’s Affiliate Program, you will have access to Affiliate Portal via Pharmstrong Affiliate. Here you will be able to review our Program’s details, download code (that provides for links to web pages within the PHARMSTRONG website) and banner creatives, browse and get tracking codes for our current coupons and deals. In order for us to accurately keep track of all guest visits from your site to ours, you must use the Pharmstrong Affiliate code that we provide for each banner, text link, or other affiliate links we provide you with unless otherwise directly agreed upon. 2.3. PHARMSTRONG reserves the right, at any time, to review your placement and approve the use of your links and creatives and require that you change the placement or use to comply with the guidelines provided to you. 2.4. The maintenance and the updating of your site will be your responsibility. We provide you applicable updates and monitor our affiliates. 2.5. It is your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be text, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third-party rights. 2.6 As a PHARMSTRONG affiliate, you are expected to be in compliance with both FTC and GDPR regulations. Failure to be compliant will result in termination from the affiliate program
3. PHARMSTRONG’s Rights and Obligations. 3.1. We have the right and do monitor your site at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our website are appropriate and to notify further you of any changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your relationship in the PHARMSTRONG Affiliate Program. 3.2. PHARMSTRONG reserves the right to terminate this Agreement and your participation in the PHARMSTRONG Affiliate Program immediately and without notice to you should you commit fraud in defiance of our Affiliate Program, represent PHARMSTRONG in a way that is not fitting for the brand or should you abuse this program in any way. If such fraud or abuse is detected, PHARMSTRONG shall not be liable to you for any commissions for such fraudulent sales. Commissions will be reversed immediately. 3.3. This Agreement takes effect with the acceptance of your Affiliate application and will continue unless removed from the program
4. Termination. Either you or we may end this Agreement AT ANY TIME, with or without cause.
5. Modification. We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such an event, you will be notified by email via Pharmstrong Affiliate. Modifications may include but are not limited to, changes in the payment procedures and PHARMSTRONG’s Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in PHARMSTRONG’s Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
6. Payment. PHARMSTRONG uses PayPal for all payments. Payments are made every 2 weeks. Payments will reflect sales from a post 30 day sales date to take into account the return policy. Refer to your Affiliate Reports to keep track of commissions and payments.
7. Access to Affiliate Account Interface. You will create a password through Shareasale’s secure affiliate account interface. From their site, you will be able to receive your reports on activity and commissions.
8. Promotion Restrictions. 8.1. Certain forms of advertising are always prohibited by PHARMSTRONG. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote PHARMSTRONG.com so long as the recipient is already subscribed through the CAN-SPAM laws, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote PHARMSTRONG so long as the newsgroup allows promotional messages. At all times, you must clearly represent yourself and your websites as independent from PHARMSTRONG.com. Spamming is the reason for immediate termination. 8.2. Affiliates that bid in their Pay-Per-Click campaigns on any trademarked related keywords such as PHARMSTRONG.com, PHARMSTRONG, www.pharmstrong.com, PHARMSTRONG coupons, product names and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – will be considered trademark violators, and will be banned from the Affiliate Program. We will do everything possible to contact the affiliate prior to the ban. However, we reserve the right to expel any trademark violator from our affiliate program without prior notice, on the first occurrence of such PPC bidding behavior. 8.3. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited PHARMSTRONG.com (i.e., no page from our site or any PHARMSTRONG.com’s content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non-affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open PHARMSTRONG’s web site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application
9. Grant of Licenses. 9.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through affiliate links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of PHARMSTRONG’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of PHARMSTRONG.com and the good will associated therewith will inure to the sole benefit of PHARMSTRONG. 9.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene, or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights, and no right, title, or interest is transferred to the other.
10. Disclaimer. PHARMSTRONG MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING PHARMSTRONG’S SERVICE AND WEBSITE OR THE PRODUCTS PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF PHARMSTRONG’S ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. 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.
11. Representations and Warranties. You represent and warrant that: 11.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms; 11.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party; 11.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12. Limitations of Liability. WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL PHARMSTRONG.COM’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
13. Indemnification. You hereby agree to indemnify and hold harmless PHARMSTRONG, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary rights of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
14. Confidentiality. All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
15. Miscellaneous. 15.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and PHARMSTRONG. 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 any other of Your Site or otherwise, that reasonably would contradict anything in this Section. 15.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party. 15.3. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to the conflicts of laws and principles thereof. 15.4. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties. 15.5. This Agreement represents the entire agreement between us and you and shall supersede all prior agreements and communications of the parties, oral or written. 15.6. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement. 15.7. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.