PLEASE READ THIS AFFILIATE PROGRAM AGREEMENT CAREFULLY.
This is a contract between you (the “Affiliate”) and us (“Bio Sleep Concept”). It outlines our collaborative efforts and various aspects of our business relationship. While this document contains legal language, we have strived to make it as comprehensible as possible.
The Affiliate Program Agreement pertains to your participation in our Affiliate Program (the “Affiliate Program”). These terms are of utmost importance, and your agreement to them is necessary for your involvement in the program.
We regularly update these terms and may entirely replace them if, for instance, there are modifications, termination, or integration of the Affiliate Program into an existing program, including our partner programs. In the event of such updates or replacements, we or the Affiliate Tool will notify you through electronic means, such as in-app notifications or emails. If you disagree with the updated or replaced terms, you can opt to terminate your participation as described below.
Definitions
“Bio Sleep Concept Affiliate” refers to a company owned, operated, or controlled by Bio Sleep Concept.
“Affiliate Program” denotes our affiliate program as described in this Agreement.
“Affiliate Lead” signifies a potential customer who clicks on the Affiliate Link provided to you through the Affiliate Tool.
“Affiliate Link” represents the unique tracking link you place on your website or promote through other channels.
“Affiliate Policies” encompasses the guidelines and policies applicable to affiliates, which we may periodically provide.
“Affiliate Tool” denotes the tool available to you upon acceptance into the Affiliate Program, facilitating your participation.
“Agreement” refers to this Affiliate Program Agreement, including all associated materials referenced or linked herein.
“Commission” signifies the specified amount described in the Affiliate Tool (or, if applicable, in the Program Policies) for each Customer Transaction.
“Customer” denotes the authorized user of Bio Sleep Concept Products who has made a purchase or signed up for our products after being an Affiliate Lead.
“Customer Transactions” entail the eligible transactions by Affiliate Leads that qualify for Commission, as outlined in the ‘Customer Transactions’ section of this Agreement. Such transactions may include customer purchases or signups, further elucidated in the Affiliate Tool.
“Customer Data” encompasses all information submitted or collected by the Customer through Bio Sleep Concept Products, along with any materials provided, posted, uploaded, input, or submitted for public display via the said products.
“Bio Sleep Concept Content” denotes all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags integrated into our services.
“Program Policies Page” refers to the landing page:
https://www.biosleepconcept.com/partners/affiliates/program-policies, where we present the latest guidelines and policies for the Affiliate Program.
“We,” “us,” “our,” and “Bio Sleep Concept” refer to Bio Sleep Concept, Inc.
“You” and “Affiliate” refer to the party, other than Bio Sleep Concept, entering into this Agreement and participating in the Affiliate Program.
Non-Exclusivity
This Agreement does not establish an exclusive agreement between you and us. Both you and we have the right to recommend similar products and services of third parties and collaborate with other parties in relation to the design, sale, installation, implementation, and use of similar services and products offered by third parties.
Affiliate Acceptance
Upon completion of your Affiliate application, we will review it and notify you of your acceptance or rejection to participate in the Affiliate Program. Before accepting an application, we may request additional information from you to assess your suitability. Certain requirements or certifications may need to be fulfilled prior to acceptance. If we do not notify you of your acceptance within thirty (30) days from the date of your application, it will be considered rejected.
If you are accepted into the Affiliate Program, the terms and conditions of this Agreement will apply in full force and effect until termination as specified below. Additionally, you must fulfill any enrollment criteria outlined in the Program Policies Page, if applicable. Failure to complete the enrollment criteria within thirty (30) days of acceptance will result in immediate termination of this Agreement, and you will no longer be eligible to participate in the Affiliate Program.
Your acceptance and participation in the Affiliate Program do not guarantee acceptance into any of our Bio Sleep Concept Partner Programs, including the Solutions Partner Program or the App Partner Program. To participate in these programs, you must follow the relevant application procedure.
You are required to comply with the terms and conditions of this Agreement at all times, including any applicable Program Policies.
Customer Transactions
Affiliate Program Limits: Each accepted Affiliate Lead will expire based on the information provided in the Affiliate Tool (or as stated in the Program Policies) from the date the Affiliate Lead clicked on the Affiliate Link provided by you. We will pay you a Commission as described in the Affiliate Tool (or as stated in the Program Policies) for each new Customer who completes a relevant Customer Transaction after clicking on an Affiliate Lead provided by you, subject to your eligibility to receive Commission according to the terms of this Agreement. The start of the Customer’s subscription is determined by the date of their initial purchase or sign-up (as applicable) of the Subscription Service, and you will receive a Commission payment for that Customer Transaction only, regardless of any additional purchases made by the customer during their Subscription Service. For instance, if the initial Customer Transaction is for one user of Bio Sleep Concept Professional, and the same customer later makes an additional purchase of an extra user of Bio Sleep Concept Professional for the same subscription, you will receive a Commission for the initial user purchase only. The Affiliate will not be entitled to receive Commission on any additional purchases of Bio Sleep Concept Products made by the same Customer.
Eligibility: To qualify for Commission: (i) an Affiliate Lead must be accepted and valid as outlined in the ‘Acceptance and Validity’ section, and (ii) a Customer Transaction must have taken place. You will not be eligible for Commission or any other compensation if: (i) such compensation is prohibited or restricted by federal, state, or local laws or regulations in the United States or your jurisdiction; (ii) the relevant Customer objects to or restricts such compensation or excludes it from payments to us or Bio Sleep Concept Affiliates; (iii) the Customer directly pays or will pay you for commissions, referral fees, or other compensation; (iv) the Commission payment is obtained through fraudulent means, misuse of the Affiliate Link, violation of any Affiliate Program Policies provided to you, misuse of the Affiliate Tool, or any other method that violates the spirit of the Affiliate Program; or (v) the Customer participates in any of our partner programs, such as the Agency Partner Program, Sales Referral Partner Program, or Sales Solutions Partner Program, and is eligible to receive a commission for the Customer Transaction under any of those programs. If you are eligible for a revenue share payment or commission under another Bio Sleep Concept Program, that payment amount will remain unchanged based on your participation in the Affiliate Program. For instance, you cannot receive the Commission specified in this Agreement for any Partner Transaction completed while participating as a partner in the Solutions Partner Program (as defined in the Solutions Partner Program Agreement). In competitive situations with other affiliates, we may exercise discretion to grant the Commission to the affiliate we consider most eligible. We reserve the right to discontinue Commission payments if any of the eligibility criteria in this subsection are not met at any time.
Acceptance and Validity. You will only qualify for a Commission payment for Customer Transactions originating from Affiliate Leads generated by the Affiliate Link provided by Bio Sleep Concept and accepted by us. An Affiliate Lead will be deemed valid and accepted if, in our reasonable judgment: (i) it represents a new potential customer for us, and (ii) it is not an existing customer within sixty (60) days prior to submission or involved in our active sales process. However, we retain the discretion to decline an Affiliate Lead. An Affiliate Lead will not be considered valid if their first click on the Affiliate Link occurs after the termination or expiration of this Agreement.
Engagement with Prospects. Once we receive the Affiliate Lead information, we may choose to directly engage with the prospect, irrespective of the validity of the Affiliate Lead. If an Affiliate Lead is deemed invalid, we may opt to retain it in our database and still engage with the lead. The decision to engage with an Affiliate Lead rests solely at the discretion of Bio Sleep Concept.
Commission and Payment. To receive payment under this Agreement, you must: (i) agree to the terms of this Agreement, typically completed through the Affiliate Tool; (ii) complete all necessary steps to create your account in the Affiliate Tool according to our instructions; (iii) have a valid and up-to-date payment method registered in the Affiliate Tool for your account; (iv) provide any required tax documentation to enable the Affiliate Tool to process your owed payments.
Requirements for Payment; Forfeiture. We will have no obligation to pay you any Commission linked to a Forfeited Transaction.
Commission Payment. The currency in which we pay the Commission, as well as the applicable conversion rate, will be determined by us or the Affiliate Tool. We will not issue more than one Commission payment or similar referral fee for a single Customer Transaction (unless we decide otherwise at our discretion).
Taxes. You are responsible for paying all applicable taxes and fees, including bank fees, related to the Commission. Any amounts owed by us to you may be offset against any amounts you owe to us.
Commission Amounts. We reserve the right to modify or adjust the Commission amount in accordance with the guidelines provided by the Affiliate Tool.
Trademarks
You grant us a nonexclusive, nontransferable, royalty-free right to utilize and exhibit your trademarks, service marks, and logos (“Affiliate Marks”) in association with the Affiliate Program and this Agreement.
Throughout the duration of this Agreement, if we provide our trademark to you through the Affiliate Tool, you may employ our trademark, as long as you adhere to the usage requirements specified in this section. You must: (i) solely use the images of our trademark that we provide to you, without modifying them in any manner; (ii) exclusively employ our trademarks in connection with the Affiliate Program and this Agreement; (iii) adhere to our vendor kit and Trademark Usage Guidelines; and (iv) promptly comply if we request that you discontinue usage. You must not: (i) employ our trademark in a misleading or derogatory manner; (ii) employ our trademark in a way that implies our endorsement, sponsorship, or approval of your services or products; or (iii) employ our trademark in violation of applicable laws or in connection with obscene, indecent, or unlawful topics or materials.
Proprietary Rights
Bio Sleep Concept’s Proprietary Rights. The Bio Sleep Concept Products are safeguarded by intellectual property laws. The Bio Sleep Concept Products belong to us or our licensors (if any) and are our property. We maintain full ownership rights in the Bio Sleep Concept Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Bio Sleep Concept Content or the Bio Sleep Concept Products, whether in whole or in part, through any means, except as expressly authorized in writing by us. If you intend to use Bio Sleep Concept Content, you must adhere to our Content Usage Guidelines found here. Bio Sleep Concept, the Sprocket Design, the Bio Sleep Concept logos, and other marks that we occasionally use are our trademarks, and you may not use them without our prior written permission, except as otherwise specified in this Agreement.
We encourage all customers, affiliates, and partners to provide feedback on the Bio Sleep Concept Products, offer suggestions for their improvement, and vote on preferred suggestions. You acknowledge that all such comments and suggestions are non-confidential, and we possess all rights to use and incorporate them into the Bio Sleep Concept Products without owing any compensation to you.
Customer’s Proprietary Rights. As between you and the Customer, the Customer retains the right to access and utilize the Customer portal associated with the Bio Sleep Concept Products. For clarity, the Customer Data is owned and retained entirely by the Customer.
Confidentiality
As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) Bio Sleep Concept customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors, and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule, or regulation, subpoena, or legal process.
Opt Out and Unsubscribing
You will promptly comply with all opt-out, unsubscribe, “do not call,” and “do not send” requests. Throughout the duration of this Agreement, you will establish and maintain systems and procedures appropriate to fulfill all opt-out, unsubscribe, “do not call,” and “do not send” requests.
Term and Termination
Term. This Agreement will apply for as long as you participate in the Affiliate Program, until terminated. Termination Without Cause. Both you and we may terminate this Agreement on fifteen (15) days’ written notice to the other party. Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days’ written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change. Termination for Cause. We may terminate this Agreement: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of that period, (ii) upon fifteen (15) days’ notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of that period, (iii) immediately if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, (iv) immediately if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our affiliate, or (v) immediately if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement: (i) without cause by us, (ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, as long as the related payment for the Customer Transaction is acknowledged by us within thirty (30) days after the date of such termination or expiration. Provided that, in no event shall you be entitled to payment of Commission under this Agreement if you are eligible to receive a revenue share payment under the Solutions Partner Program Agreement. We will not pay you fees on Customer Transactions recognized by us after thirty (30) days after the date of such termination or expiration set out above. Provided, however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after the expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete the Affiliate Tool that we make available to you for your participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect. Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s subscription agreement to be terminated.
Affiliate Representations and Warranties
You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Affiliate Program and to provision Bio Sleep Concept with Affiliate Lead’s for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Affiliate Program will not conflict with any of your existing agreements or arrangements, and (iii) you own or have sufficient rights to use and to grant to us our right to use the Affiliate Marks.
You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program (for example, by clearly stating that you are a Bio Sleep Concept Affiliate on any website(s) you own where you make an Affiliate Link available), (ii) you will accurately provide in the Affiliate Tool all websites and domains you own where you intend to use Affiliate Links to generate Affiliate Leads, (iii) you will not purchase ads that direct to your site(s) or through an Affiliate Link that could be considered as competing with Bio Sleep Concept’s own advertising, including, but not limited to, our branded keywords, (iv) you will not participate in cookie stuffing or pop-ups, and false or misleading links are strictly prohibited, (v) you will not attempt to mask the referring URL information, (vi) you will not use your own Affiliate Link to purchase Bio Sleep Concept products for yourself, and (vii) you will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, iframes, or hidden frames), or offering incentives to encourage purchases or signups.
Disclaimers; Limitations of Liability
Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE BIO SLEEP CONCEPT PRODUCTS, BIO SLEEP CONCEPT CONTENT, THE AFFILIATE PROGRAM, OR THE AFFILIATE TOOL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE BIO SLEEP CONCEPT PRODUCTS AND AFFILIATE TOOL ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE BIO SLEEP CONCEPT PRODUCTS AND THE AFFILIATE TOOL, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CUSTOMER TRANSACTIONS IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
Affiliate Tool. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE AFFILIATE TOOL THAT YOU USE. WE DO NOT PROMISE TO MAKE THE AFFILIATE TOOL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO OR NOT TO DO SO IN OUR DISCRETION.
Cookie Duration. COOKIES USED AS PART OF THE AFFILIATE TOOL HAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, BIO SLEEP CONCEPT SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.