Last Modified: May 24, 2024

PLEASE READ THIS AFFILIATE PROGRAM AGREEMENT CAREFULLY.

This is a contract between you (the “Affiliate”) and Embr Labs, Inc. (the “Company”). 

The Company’s Affiliate Program Agreement (the “Agreement”) describes the guidelines, obligations, and financial terms that govern the relationship between the Affiliate and the Company. Affiliates must agree to the Agreement terms to participate in the Company’s Affiliate Program.

Your participation in the Company’s Affiliate Program is solely to legally advertise the Company’s website to receive a commission on products purchased by individuals referred to the Company’s brand by the Affiliate’s own website or personal referrals.

By signing up for the Company’s Affiliate Program, you indicate your acceptance of this Agreement and its terms and conditions.

The Company reserves the right to periodically update the Agreement terms, including replacing the Agreement terms in their entirety. If the Company updates the Agreement terms, the Affiliate will be notified. If updated Agreement terms are not acceptable to the Affiliate, the Affiliate can terminate the Agreement with the Company.

Definitions

“Affiliate” means the party, other than the Company, entering into this Agreement and participating in the Affiliate Program.

“Affiliate Program” means the Company’s affiliate program as described in this Agreement.

“Affiliate Lead” means a customer prospect who clicks on the Affiliate Link that the Company has made available to the Affiliate via the Affiliate Tool.  

“Affiliate Link” means the unique tracking link the Affiliate places on the Affililate’s site or promotes through other channels.

“Affiliate Policies” means the policies applicable to Affiliates which the Company may make available to Affiliates from time to time

“Affiliate Tool” means the tool that the Company makes available to the Affiliate upon acceptance into the Affiliate Program and for the Affiliate to use in order to participate in the Affiliate Program. The Affiliate Tool is where the Company will provide all the up to date terms and policies for the Affiliate Program.

"Agreement" means this Affiliate Program Agreement and all materials referred or linked to in this Agreement.

“Commission” means an amount described in the Affiliate Tool for each Customer Transaction.

“Customer” means the authorized actual user of the Company’s products and services who have purchased or signed up for the Company’s products or services after being an Affiliate Lead.

“Customer Transactions” means those transactions by Affiliate Leads that are eligible for Commission pursuant to this Agreement. Customer Transactions may include customer purchases or signups.

"Customer Data" means all information that Customer submits or collects via the Company’s  products and services, and all materials that Customer provides or posts, uploads, inputs or submits for public display through the Company’s products or services.

"Company Content" means all information, data, text, messages, software, sound, music, video, photographs, graphics, images, and tags that the Company incorporates into the Company’s services.

“Company Products” means all purchased or paid for products and services offered by the Company

Program Acceptance and Enrollment

To join the Affiliate Program, applicants must be approved by the Company. Approval is at the Company's sole discretion and may be withheld or revoked if an applicant or Affiliate does not comply with the Agreement terms.

The Company will review all Affiliate Program applications and notify the Affiliate applicant whether the Company has accepted the Affiliate to participate in the Affiliate Program.  As part of this process the Company may request additional information from the Affiliate applicant. The Company may also require that the Affiliate applicant complete certain requirements prior to the Company accepting the application.

If the Affiliate applicant is accepted to participate in the Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until the Agreement is terminated.  Further, the Affiliate will need to complete any enrollment criteria set out by the Company, where applicable.

The Company reserves the right to approve or reject ANY Affiliate Program application at the Company’s sole and absolute discretion. The Affiliate will have no legal recourse against the Company for the rejection of an Affiliate Program application.

Affiliate Obligations

Affiliates must comply with all legal requirements and good industry practices, including clear disclosure of their affiliate status when promoting the Company’s products using affiliate links provided by the Company.

Affiliates are prohibited from modifying or altering the Company’s Products or images in any way that has not been pre-approved by the Company.

Affiliates will comply promptly with all opt out, unsubscribe, "do not call" and "do not send" requests from prospects, Affiliate Leads or Customers.  For the duration of this Agreement, Affiliates will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, "do not call" and "do not send" requests.

Use of spamming or any other form of Internet abuse (including but not limited to spamming forums, blogs, Twitter, Facebook, and other social media platforms) to seek sales is strictly prohibited by Affiliates of the Company.

Affiliates must have all Company Product coupons or other offers pre-approved by the Company prior to promotion to Affiliate prospects or leads. Affiliates who promote the Company’s products or services in relation to a pre-approved deal or coupon must not:

• Use misleading text on Affiliate links, buttons or images to imply that anything besides currently Company authorized deals are available to The Affiliate.

• Bid on The Company’s active coupons, discounts or other phrases, implying these Company coupons are available from the Affiliate.

• Generate pop-ups, pop-unders, iframes, frames, or any other seen or unseen actions that set Affiliate cookies.

• Have the Affiliate’s site say “Click for (or to see) Deal/Coupon” or any variation, when there are no coupons or deals available. 

Company Obligations

The Company agrees to provide all necessary brand and product information and materials for the proper promotion and sale of the Company Products by Affiliates.

The Company will manage and track all Customer Transactions generated by Affiliates and will provide reporting via the Affiliate Tool to help Affiliates track their Customer Transactions and Commissions.

The Company may make available to Affiliates, without charge, training or resources as part of the Affiliate Program.

The Company will review all requested promotions submitted by the Affiliate to the Company, but approval of all Affiliate promotions is at the sole discretion of the Company.

Non-Exclusivity

This Agreement does not create an exclusive agreement between the Affiliate and the Company. Both the Affiliate and the Company will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.

Affiliate Leads and Commission Validation

Affiliates are only eligible for Commission payments for Customer Transactions that are derived from Affiliate Leads generated by the Affiliate Link that the Company makes available. 

An Affiliate Lead will be considered valid and accepted if, in the Company’s reasonable determination: (i) it is a new potential customer of the Company, and (ii) is not, at the time of submission or sixty (60) days prior, one of the Company’s pre-existing customers.  Notwithstanding the foregoing, the Company may choose not to accept an Affiliate Lead at its reasonable discretion.  

An Affiliate Lead is not considered valid if a Customer’s first click on the Affiliate Link is after this Agreement has expired or terminated. 

Affiliate Leads will expire according to the information provided in the Affiliate Tool. Expiration is based on the date the Affiliate Lead first clicked on the Affiliate Link that was made available by the Affiliate. If an Affiliate Lead does not purchase the Company Product(s) within the time period described in the Affiliate Tool, the Affiliate will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired.  

The Company may elect to engage with Affiliate Leads directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid then the Company may choose to maintain the Affiliate Lead in our database and choose to engage with such Affiliate Lead. Any engagement between the Company and an Affiliate Lead will be at the Company’s discretion.

Commission Eligibility and Payments

The Company will pay the Affiliate Commissions for each new Affiliate Lead who completes an applicable and valid Customer Transaction, provided that the Affiliate remains eligible to receive Commission pursuant to the terms of this Agreement. 

The Affiliate is limited to one commission per customer referral. The Affiliate will only receive a commission on the Affiliate Leads first Customer Transaction only.

To be eligible for Commissions (i) an Affiliate Lead must be accepted and valid in accordance with the terms of Affiliate Agreement, (ii) a Customer Transaction must have occurred, (iii)  a Customer must remain a customer during the period specified in the Affiliate Tool.  Payments will only be sent for Customer Transactions that have been successfully completed. Customer Transactions that result in charge backs, returns or refunds will not be paid out.

Affiliate Commissions are per the commission structure specified in the Affiliate Tool at the time of Affiliate Program Enrollment or as later modified by mutual agreement. The Company reserves the right to alter or change the Commission amount as per the Affiliate Tool. 

Payments are made to Affiliates on a Net 30 basis. All payments will be made via Paypal via the Paypal account information provided by the Affiliate to the Company.

The Company will determine the currency in which we pay the Commission, as well as the applicable conversion rate.

In order to receive payment under this Agreement, the Affiliate must have: (i) agreed to and be compliant with the terms of this Agreement; (ii) completed all steps necessary to create an account in the Affiliate Tool in accordance with the Company’s directions, (iii) have a valid and up-to-date payment method on record with the Company, and (iv) completed any and all required tax documentation in order for the Company to process any payments that may be owed to the Affiliate.

The Affiliate is responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by the Company to the Affiliate are subject to offset by the Company against any amounts owed by the Affiliate to the Company.

Affiliates are not eligible to receive Commission or any other compensation from the Company if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of the Affiliate’s jurisdiction; (ii) the applicable Customer objects to or prohibits such compensation or excludes such compensation from its payments to the Company; (iii) the Customer has paid or will pay such commissions, referral fees, or other compensation directly to the Affiliate, or (iv) the Commission payment has been obtained by fraudulent means, misuse of the Affiliate Link, in violation of any Affiliate Program policies that the Company makes available to the Affiliate, misuse of the Affiliate Tool or by any other means that the Company deems to breach the spirit of the Affiliate Program. 

In competitive situations with other affiliates, the Company may elect to provide the Commission to the affiliate that the Company deems to be the most eligible for Commission, at the Company’s discretion. 

Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in this Agreement remain outstanding for six (6) months immediately following the close of a Customer Transaction, then the Affiliate’s right to receive Commission arising from any and all Customer Transactions with the associated Customer will be forever forfeited (each, a “Forfeited Transaction”). The Company will have no obligation to pay the Affiliate any Commission associated with a Forfeited Transaction. Once the Affiliate complies with all of the requirements in the Agreement, then the Affiliate will be eligible to receive Commission on Customer Transactions, as long as these Customer Transactions do not involve the same Customer associated with a Forfeited Transaction.

The Company may discontinue Commission payments should any of the eligibility criteria set forth in this Agreement fail to be met at any time.

Trademarks 

The Affiliate grants the Company a nonexclusive, non transferable, royalty-free right to use and display the Affiliate’s trademarks, service marks and logos (“Affiliate Marks”) in connection with the Affiliate Program and this Agreement.

During the term of this Agreement, the Affiliate may use the Company’s trademark only following the usage requirements in this section. The Affiliate must: (i) only use the images of the Company’s trademark that the Company makes available to the Affiliate, without altering them in any way; (ii) only use the Company’s trademarks in connection with the Affiliate Program and this Agreement; (iii) comply with the Company’s provided brand guidelines; and (iv) immediately comply if the Company requests that the Affiliate discontinue use.  The Affiliate must not: (i) use the Company's trademark in a misleading or disparaging way; (ii) use the Company's trademark in a way that implies the Company endorses, sponsors or approves of the Affiliate’s services or products; or (iii) use the Company's trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

Intellectual Property and Proprietary Rights

No license to any software or product design is granted by this Agreement. The Company’s Products and Services are protected by intellectual property laws. The Company’s Products and Services belong to and are the property of the Company or its licensors (if any). The Company retains all ownership rights in the Company's Products and Services. The Affiliate agrees not to copy, rent, lease, sell, distribute, or create derivative works based on the Company’s Content, Products, or Services, in whole or in part, by any means, except as expressly authorized in writing by the Company.

The Company encourages all customers, affiliates and partners to comment on the Company’s Products and Services, provide suggestions for improving them, and vote on suggestions they like. The Affiliate agrees that all such comments and suggestions will be non-confidential and that the Company owns all rights to use and incorporate them into the Company’s Products and Services, without payment to the Affiliate.

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) the Company’s 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.

Term and Termination

This agreement shall commence upon the Affiliate's acceptance into the Affiliate Program and will end when terminated by either party. Either party may terminate this agreement at any time, with or without cause, by giving the other party written notice of termination.

The terms and conditions of this Agreement may be modified by the Company at any time. If any modification to the terms and conditions of this Agreement are unacceptable to the Affiliate, the Affiliate’s only choice is to terminate their account. The Affiliate’s continuing participation in the Program will constitute the acceptance of any Agreement changes.

Affiliate termination due to Agreement Changes’ shall not affect The Company’s obligation to pay the Affiliate a Commission, so long as the related payment by the Customer Transaction is recognized by the Company within thirty (30) days after the date of such termination or expiration. The Company will not pay the Affiliate fees on Customer Transactions recognized by the Company 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 the Affiliate, or for cause by the Company, the Company’s obligation to pay and the Affiliate’s right to receive any Commission will terminate upon the date of such termination, regardless of whether the Affiliate would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, the Affiliate is not eligible to receive a Commission payment after expiration or termination of this Agreement. 

The Affiliate’s status in the Company’s Program may be terminated by the Company at any time for any of the following reasons or actions by the Affiliate:

• Inappropriate advertisements (false claims, misleading hyperlinks, etc.).

• Spamming (mass email, mass newsgroup posting, etc.).

• Advertising on sites containing or promoting illegal activities.

• Failure to disclose the affiliate relationship for any promotion that qualifies as an endorsement under existing Federal Trade Commission guidelines and regulations, or any applicable state laws.

• Self referrals, fraudulent transactions, suspected Affiliate fraud.

• Non-payment of any amount due to the Company from the Affiliate

• Failure to address a material Agreement breach, if such breach remains uncured within fifteen (15) days notice by the Company

• Become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, 

• The Company has determined the Affiliate is, or has acted, in a way that has or may negatively reflect on or affect the Company, its prospects, or its Customers.

Upon termination or expiration, the Affiliate will discontinue all use of the Affiliate Tool that the Company made available for participation in the Affiliate Program. Upon termination or expiration, an Affiliate Lead is no longer considered valid, and the Company may choose to maintain any Leads in its database and engage with such prospects.

Upon termination or expiration, the Affiliate will immediately discontinue all use of the Company’s trademark and references to this Affiliate Program from the Affiliate’s website(s) and other collateral. 

For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Customer’s service agreement with the Company to be terminated.

Affiliate Representations and Warranties

The Affiliate represents and warrants that: (i) the Affiliate has all sufficient rights and permissions to participate in the Affiliate Program and to provision the Company with Affiliate Lead’s for the Company’s use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) the Affiliate’s participation in this Affiliate Program will not conflict with any existing agreements or arrangements; and (iii) the Affiliate owns or has sufficient rights to use and to grant to the Company our right to use the Affiliate Marks.

The Affiliate further represents and warrants that: (i) the Affiliate will ensure they are compliant with any trade or regulatory requirements that may apply to participation in the Affiliate Program; (ii) the Affiliate will not purchase ads that direct to site(s) or through an Affiliate Link that could be considered as competing with the Company’s own advertising, including, but not limited to, the Company’s branded keywords; (iii) the Affiliate will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (iv) the Affiliate will not attempt to mask the referring URL information; (v) the Affiliate will not use their own Affiliate Link to purchase the Company’s products for yourself; and (vi) the Affiliate will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data, using fake redirects or other tools or automation devices to generate leads, or offering incentives to encourage purchases or signups.  

Indemnification

The Affiliate will indemnify, defend and hold the Company harmless, at the Affiliate's expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against the Company (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with the Company to the extent that such Action is based upon or arises out of (a) the Affiliate’s participation in the Affiliate Program, (b) the Company’s use of the prospect data the Affiliate provides to the Company, (c) the Affiliate’s noncompliance with or breach of this Agreement, (d) the Affiliate’s use of the Affiliate Tool, or (e) the Company’s use of the Affiliate Marks. 

The Company will notify the Affiliate in writing within thirty (30) days of becoming aware of any such claim; give the Affiliate sole control of the defense or settlement of such a claim; and provide the Affiliate (at the Affiliate’s expense) with any and all information and assistance reasonably requested by the Affiliate to handle the defense or settlement of the claim. The Affiliate shall not accept any settlement that (i) imposes an obligation on the Company; (ii) requires the Company to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on the Company without prior written consent by the Company.

Disclaimers and Limitations of Liability

The Company will not be liable for indirect, accidental, special, or consequential damages arising in connection with this Affiliate Program. The Company’s aggregate liability arising with respect to this Affiliate Program will not exceed the total commissions paid or payable to the Affiliate for the related Customer Transactions in the twelve (12) month period preceding the event giving rise to the claim.

THE COMPANY, ITS AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE COMPANY’S PRODUCTS, CONTENT, AFFILIATE PROGRAM OR AFFILIATE TOOL FOR ANY PURPOSE. THE AFFILIATE TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE COMPANY’S PRODUCTS AND AFFILIATE TOOL ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. THE COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE COMPANY’S PRODUCTS AND AFFILIATE TOOL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

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.

GENERAL

Applicable Law 

This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to the conflict of laws provisions thereof. In the event either party initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Boston, Massachusetts.

Force Majeure

Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.

Actions Permitted

Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.

Relationship of the Parties

Both parties agree that no joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement.

Compliance with Applicable Laws 

The Affiliate shall comply, and shall ensure that any third parties performing sales or referral activities on their behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. The Affiliate shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to the Company, its customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Company's Products. The Affiliate will not directly or indirectly export, re-export, or transfer the Company's Products to prohibited countries or individuals or permit use of the Company's Products by prohibited countries or individuals.

Severability

If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.

Notices 

Notices will be sent to the contact addresses set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.

• To Embr Labs, Inc, 24 Roland Street, Ste #102, Boston, MA 02129,  U.S.A. Attention: Chief Operating Officer

• To the Affiliate’s address, email, and/or telephone as provided in the Affiliate account information

Entire Agreement 

This Agreement is the entire agreement between the Company for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between both parties. The Company objects to and rejects any additional or different terms proposed by the Affiliate, including those contained in any purchase order, acceptance or website. The Company’s obligations are not contingent on the delivery of any future functionality or features of the Company's Products or dependent on any oral or written public comments made by the Company regarding future functionality or features of the Company's Products.

Assignment 

The Affiliate will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without the Company’s prior written consent. The Company may re-assign this Agreement in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.

No Third Party Beneficiaries  

Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

No Licenses 

We grant to the Affiliate only the rights and licenses expressly stated in this Agreement, and the Affiliate receives no other rights or licenses with respect to the Company, the Company's Products, trademarks, or any other property or right of the Company.

Sales by the Company 

This Agreement shall in no way limit the Company’s right to sell the Company's Products, directly or indirectly, to any current or prospective customers.

Authority

Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.

Survival 

The following sections shall survive the expiration or termination of this Agreement: ‘Commission Eligibility and Payments’, ‘Intellectual Property and Proprietary Rights’, ‘Confidentiality’, ‘Term and Termination’, ‘Indemnification’, ‘Disclaimers and Limitations of Liability’, and 'GENERAL', including all sub-sections.