MD Hearing Aid Affiliate Program Overview
TERMS & CONDITIONS:
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND MDHEARINGAID, INC. (“MDHearingAid”).
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.
This Agreement contains the complete terms and conditions that apply to you becoming an Affiliate in MDHearingAid’s Affiliate Program. The purpose of this Agreement is to allow linking between your website or social sites and the MDHearingAid’s website. Please note that throughout this Agreement, “we,” “us,” and “our” refer MDHearingAid, and “you,” “your,” and “yours” refer to the Affiliate.
2. Eligibility and Application Process
2.1. To be eligible to participate in MDHearingAid’s Affiliate Program, you must:
For individuals: be over the age of 18; a legal resident of the United States; have a valid phone number; email address, and postal address; provide a valid tax ID; and be passionate about MDHearingAid’s mission and products.
For companies: be legally formed entity; have a valid phone number, email address, and postal address; and provide a valid tax ID.
2.2. To apply, you must fill out all required information in the form below and click “submit.” MDHearingAid will review all completed applications for eligibility and suitability to see if you are a good fit. If you are accepted to participate in the MDHearingAid Affiliate Program, then upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below.
2.3. MDHearingAid may reject applications that do not meet eligibility requirements or are otherwise, in MDHearingAid’s sole discretion, not suitable with MDHearingAid’s mission and products.
2.4. This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the marketing and sale of MDHearingAid products.
3. Affiliate Obligations
3.1 As a member of MDHearingAid’s Affiliate Program, you will be provided a personalized Affiliate link (hereinafter “Your Links”). MDHearingAid may also include instructions for use of Your Links, including, but not limited to, the manner in which they should be displayed and the timeframe that may be displayed. In order for us to accurately keep track of all visits from your site to ours, you must use the link and coupon code that we provide. You must also ensure that Your Links are updated when new ones are provided and all instructions provided with the new links are followed, including any timeframes by which links must be updated. Failure to ensure links are up-to-date and appropriately used may result in waiving the right to receive any potential commission.
3.2. Affiliate agrees that it will not use MDHearingAid’s Affiliate Program and any and all links and codes provided pursuant to the program on coupon websites including, but not limited to, Coupon Birds, Slick Deals, and WeThrift. Participation in the Affiliate Program via coupon websites is strictly prohibited and you are not entitled to any commission for sales made through misuse on these sites. In the event of a commission paid when the link is used in violation of this paragraph, Affiliate agrees to return to MDHearingAid any and all commissions paid for sales in violation of this paragraph.
3.3. You will not use any MDHearingAid logos or trademarks except for the creative assets MDHearingAid provides under the limited license granted herein.
3.4. It is entirely your responsibility to follow all applicable intellectual property and other federal, state, and local laws that pertain to your site, includes applicable laws governing marketing emails (e.g. CAN-SPAM Act), and all other anti-spam laws. You must have express permission to use any person’s copyrighted material, trademarked material, or likeness. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted or trademarked material or other intellectual property in violation of the law or any third party rights.
3.5. You acknowledge that MDHearingAid reserves has the right, at any time, to review your placement and approve the use of Your Links, and agree that upon request from MDHearingAid that you will change within two (2) business days the placement or use of Your Links to comply with MDHearingAid’s request and the guidelines provided to you. You acknowledge that failure to comply with a request from MDHearingAid constitute a breach of this agreement and may result in the termination of your participation in the Affiliate Program. You agree MDHearingAid’s review and/or approval of Your Links placement is not a waiver of any legal right herein or of any of your obligations herein.
3.6. You agree that the Website or other communications that contain Your Links will not be used for any inappropriate purposes. What constitutes an inappropriate purpose is subject to MDHearingAid sole discretion and determination, and includes, but is not limited to:
- Promoting sexually explicit materials
- Promoting violence.
- Promoting discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age.
- Promoting illegal activities.
- Incorporating any materials which infringe or assist others to infringe on any copyright, trademark or other intellectual property rights or to violate the law.
- Including “MDHearingAid” variations or misspellings thereof in its domain name.
- Containing software downloads that potentially enable diversions of commission from other affiliates in our program.
- Creating or designing your website or any other website that you operate, explicitly or implied in a manner which incorporates or resembles the design and look and feel of our website, and creating or designing your website in a manner which leads customers to believe you are ProLon.com or any other affiliated businesses and their respective websites.
- Is generally unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
3.7. You agree that the maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any suggested changes that we feel could enhance your performance.
4. Rights and Obligations
4.1. MDHearingAid may from time to time provide Your Links and corresponding instructions as to the use, placement, and duration of use of Your Link. MDHearingAid may provide Your Links and instructions at any time and without any notice.
4.2. MDHearingAid agrees to provide you a commission, as described in Section 5, in exchange for your participation in the MDHearingAid Affiliate Program.
4.3. MDHearingAid may, but is not required to, provide Affiliate with complimentary products to utilize in marketing.
4.4. We have the right to monitor your sites 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 sites 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 within two (2) business days, we reserve the right to terminate your participation in the MDHearingAid Affiliate Program.
5. Commission and Payment
5.1. For each eligible purchase of a product from MDHearingAid.com that results from Your Links, MDHearingAid shall pay you a commission on the purchased goods as set forth in Section 5.3 (the “Commission”).
5.2. An ‘eligible purchase’ for purposes of determining the Commission is (i) a sale on MDHearingAid’s website attributable through Affiliates link within a 30-day window of initial customer click, or if a personalized Affiliate link has not yet been issued, a sale on MDHearingAid’s website that can be linked via tracking pixel to a visit from Affiliates website(s) within the past 30 days; and (ii) a telephone sale attributable to Affiliates custom phone number. A purchase is not an ‘eligible purchase’ for purposes of determining the Commission if:
- If the eligible purchase is returned.
- If it is a purchase for your personal use.
- Your Links were posted on a couponing site in violation of Section 3.2.
- The purchase through Your Links is a result of fraud, deception, misrepresentation, or other unlawful act or conduct.
- If you or Your Links are not in complete compliance with the terms of this Agreement at the time of the consumer’s purchase.
5.3. MDHearingAid will provide commission based on the following structure:
15% of the purchase price of an eligible purchase. The purchase price reflects the retail price, and does not include taxes and other applicable fees such as shipping and handling.
5.4. A commission becomes eligible for payment upon expiration of the return period for the Eligible Purchase. Commission payments shall be made on a monthly basis. The Commission will be paid via check or direct deposit, depending on the option chosen at enrollment. MDHearingAid is not obligated to provide notice or updates as to when Commission payments are made, but will use its best efforts to provide Commission payments by the 15th day of each month. MDHearingAid is not responsible for any errors in your information that were included in your Affiliate Program registration.
5.5. You are solely responsible for compliance with all income tax and other wage-related laws applicable to your receipt of the Commission. MDHearingAid does not and will not withhold and disperse any of the commission to satisfy your obligations, including, but not limited to, federal and state income taxes, social security, Medicare, wage garnishes, child support payment, and alimony/spousal support payments. MDHearingAid requires you to provide a valid tax ID prior to payment of the Commission.
5.6. MDHearingAid reserves the right to alter or change the terms of Commission eligibility and payment at any time. In the event a change, we will provide you written notice.
6. Promotion Requirements and Restrictions
6.1. Our products are medical devices subject to both federal and state regulation. In particular, there are some legal restrictions regarding communications about our products. Therefore, you agree that any communications you make which mention our products, whether directly or indirectly via your website, social media (including reposts), or other medium, must adhere to the following requirements:
6.1.1. Communications regarding the MDHearingAid Products must be the same or similar language as the claims appearing on the product pages at https://www.mdhearingaid.com/.
6.1.2. Communications regarding the MDHearingAid Products cannot contain any claims that do not appear on the product pages at https://www.mdhearingaid.com/.
6.2. All members of the Affiliate Program must comply with the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Guides”).
6.2.1. The FTC Guides require you to always disclose clearly and conspicuously disclose the relationship between you and MDHearingAid to consumers, in an effort to be truthful and transparent. The FTC Guides are currently available here:
https://www.ftc.gov/sites/default/files/attachments/press-releases/ftc-publishes-final-guides-governing-endorsements-testimonials/091005revisedendorsementguides.pdf. An FAQ concerning the FTC Guides is currently available here: https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking.
6.2.2. You must make clear in all content that you are being paid/compensated by MDHearingAid. We may provide suggestions for appropriate means of compliance with the FTC Guides in connection with the content, however compliance is ultimately the responsibility of the Affiliate. Best practices regarding disclosure include:
- Using “#ad” at the beginning of a post; avoid unconventional slang such as “Spon” and “Advert,” and do not place the disclosure at the end of the post or after a cut line.
- Giving readers and website visitors the essential information. A disclosure such as “MDHearingAid gave me this specific code and I get a commission from your purchase” would be effective.
6.2.2. Your communications will all have the following attributes:
- Any representations you make in connection with MDHearingAid and its products will reflect your honest opinions, findings, beliefs, or experiences with MDHearingAid and any products mentioned in the content, and may not contain any statements or representations about MDHearingAid that to the best of your knowledge are not true or are deceptive. If your opinions, findings, or experiences mentioned in the content change, you are responsible for updating the content or, if that’s not possible, for promptly informing MDHearingAid of such change.
- You will not impersonate another person or pretend you are someone else when posting content.
- If any persons appear or are referred to in the content, you are solely responsible for obtaining a valid release from such persons, prior to posting or making content publicly available, which permits MDHearingAid the right to exhibit and use the content. If any persons appearing in any content is under the age of majority in their state, country, or providence or residence, the signature of a parent or legal guardian is required on each release.
- There will not be any personally identifiable information (such as, but not limited to, license plate numbers, personal names, email addresses, or street addresses) of any person other than you. Should you include personally identifiable information about yourself in the content, you acknowledge and agree that such information will be disclosed publicly and that you are solely responsible for any consequences thereof.
- They cannot prominently feature trademarks, logos, copyrighted works, trade dress (such as distinctive packaging or building exteriors/interiors) or any intellectual property owned by others (including but not limited to music, product packaging, photographs, sculptures, paintings and other works of art or images, published on or in websites, television, movies or other media) other than as owned by Affiliate.
- To the best of your knowledge, the content does not defame, misrepresent, or contain disparaging remarks about other people, companies, or products.
- There will not be any content that violates any law.
6.3. You are free to promote your own websites, but naturally any promotion that mentions MDHearingAid or its products could be perceived by the public or the press as a joint effort. Therefore, to protect MDHearingAid’ name and prevent any damage to our goodwill, you agree to comply with the following advertising practices.
6.3.1. You will not engage in certain forms of advertising, including, but not limited to:
- Advertising commonly referred to as “spamming”
- Using of unsolicited commercial email (UCE),
- Postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once.
- Advertising that in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address.
If it comes to our attention that you are engaging in any of these practices, we will consider that cause for immediate termination of this Agreement and your participation in the MDHearingAid Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
6.3.2. You may use mailings to customers to promote MDHearingAid so long as the recipient is already a customer or subscriber of your services or website, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote MDHearingAid so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from MDHearingAid.
6.3.3. Affiliates that use keywords or exclusively bid in their Pay-Per-Click campaigns on keywords such as MDHearingAid, www.mdhearingaid.com, and/or any misspellings or similar alterations of these – be it separately or in combination with other keywords – and direct the traffic from such campaigns to their own website prior to re-directing it to ours, will be considered trademark violators, and will be banned from MDHearingAid’s 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, and on the first occurrence of such PPC bidding behavior.
6.3.4. 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 MDHearingAid’ site (i.e., no page from our site or any content or branding is visible on the end-user’s screen).
7. Grant of Licenses
7.1. We grant to you a non-exclusive, non-transferable, royalty-free revocable right to (i) access our site through 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 MDHearingAid’s Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of MDHearingAid and the good will associated therewith will inure to the sole benefit of MDHearingAid.
7.1.1. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Affiliate Program and this Agreement; and (iii) immediately comply if we request that you discontinue use.
7.1.2. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
7.2. For every communication Affiliate makes regarding MDHearingAid (regardless of whether it contains his/her Links), Affiliate grants MDHearingAid an irrevocable, perpetual, non-exclusive, fully paid-up, sub-licensable license and right to reproduce, transmit, display, comment on, edit, modify, alter, exploit, create derivative works based upon, combine with other works (and all copyrights therein and thereto and all renewals and extensions thereof), and otherwise distribute the post and all elements of the post, including without limitation, the photo and the likeness of any persons embodied therein, in any and all media now known or hereafter devised, worldwide, in perpetuity without compensation, permission, notification, attribution, or restriction from Entrant or any third party.
7.2.1. Affiliate represents and warrants he/she has the rights and authority necessary to grant this license.
7.3 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.
USE OF MDHEARINGAID’S WEBSITES IS AT YOUR OWK RISK. THE INFORMATION, MATERIALS, PRODUCTS, AND SERVICES PROVIDED ON OR THROUGH THE WEBSITES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTIES OF ANY KIND INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. MDHEARINGAID MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, ACCURACY, OR COMPLETENESS OF THE INFORMATION, MATERIALS, OR SERVICES PROVIDED ON OR THROUGH ITS WEBSITES; THE INFORMATION, MATERIALS, AND SERVICES PROVDIED ON OR THROUGH OUR WEBSITES MAY BE OUT OF DATE, AND MDHEARINGAID DOES NOT MAKE ANY COMMITEMENT OR ASSUME ANY DUTY TO UPDATE SUCH INFORMATION, MATERIALS, OR SERVICES. 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. THE FOREGOING EXCLUSIONS OF IMPLIED WARRANTIES DO NOT APPLY TO THE EXTENT PROHIBITED BY LAW. PLEASE REFER TO YOUR LOCAL LAWS FOR ANY SUCH PROHIBITIONS.
9. Limitations of Liability=
IN NO EVENT WILL WE OR OUR RESPECTIVE DIRECTORS, EMPLOYEES, AFFILIATES, AGENTS, SUCCESSORS, OR ASSIGNS 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 MDHEARINGAID’ 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.
You hereby agree to indemnify and hold harmless MDHearingAid 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) your participation in the Affiliate Program, (ii) violation of this agreement, (iii) any claim that our use of the Affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (iv) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (v) any claim related to your site, including, without limitation, content therein not attributable to us. This indemnity survives termination of this Agreement. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will cooperate with MDHearingAid in asserting any available defenses. In the event MDHearingAid opts to not assume exclusive defense, you shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
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, 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.
11. Representations and Warranties
You represent and warrant that:
12.1. 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;
12.2. 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, or creating any conflict with, any other party;
12.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
12.4. You will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Affiliate Program.
12.5. You will not purchase ads that direct to your site(s) that could be considered as competing with MDHearingAid’s own advertising, including, but not limited to, our branded keywords.
12.6. You will not participate in cookie stuffing or pop-ups, false or misleading links.
12.7. You will not attempt to mask the referring URL information.
12.8. You will not use Your Links to purchase MDHearingAid products for yourself.
13.1. This Agreement will begin upon our acceptance of your Affiliate Program application, and will continue unless terminated hereunder.
13.2. Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party fifteen (15) days written notice. Written notice can be in the form of mail, email or fax.
13.3. This Agreement will terminate immediately upon any breach of this Agreement by you. Further, MDHearingAid reserves the right to terminate this Agreement and your participation in the Affiliate Program immediately and without notice to you should you commit fraud in your use of the MDHearingAid Affiliate Program or should you abuse this program in any way. If such fraud or abuse is detected, MDHearingAid shall not be liable to you for any commissions for such fraudulent sales.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email. Modifications may include, but are not limited to, changes in the payment procedures and MDHearingAid Affiliate Program rules. If any modification is unacceptable to you, you agree that your sole remedy is to end this Agreement. Your continued participation in MDHearingAid Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
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 MDHearingAid. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
15.2. Affiliate acknowledges that it has had an opportunity to consult with Affiliate’s own counsel prior to executing this Agreement.
15.3. 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.
15.4. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Illinois without regard to the conflicts of laws and principles thereof. Any action seeking legal or equitable relief arising out of this Agreement will be exclusively brought only in the federal or state courts of the State of Illinois, and you waive any objection regarding venue or forum non conveniens.
15.5. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision by us, and no waiver of any term shall be deemed a further or continuing waiver of such term or any other term.
15.6. This Agreement represents the entire agreement between us and you, and shall supersede all prior agreements and communications of the parties, oral or written.
15.7. 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.
15.8. 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