Affiliate Program Terms & Conditions

Last updated on February 24, 2023

THIS Affiliate AGREEMENT (the “Agreement”) is made by and between MeWe, Inc., a Delaware corporation with offices at 630 15^th Avenue, San Francisco, CA 94118 (“MeWe”) and “Representative,” (together with MeWe, the “Parties” and each individually a “Party”).

WHEREAS, MeWe is engaged in the business of developing, marketing and selling a temperature and humidity monitoring system (“Therma Monitoring”); and

WHEREAS¸ Representative desires to promote the sale of Therma Monitoring on a non-exclusive basis, and MeWe desires to permit Representative to promote Therma Monitoring on the terms and conditions set forth in this Agreement; and

NOW, THEREFORE, IT IS AGREED as follows:

DEFINITIONS

As used herein, the following terms shall have the following meanings:

1. “Affiliate” means a person or entity that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the person or entity specified (as used in this definition, “control”, “controlled by” and “under common control with” shall mean the possession, directly or indirectly, of power to direct or cause the direction of the management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise)).
2. “Covered Sales” means any Direct Sales, On-line Sales and/or Referred Sales.
3. “Direct Collection Payment” shall have the meaning set forth in Section 4.2.
4. “Direct Sales” means sales of Therma Monitoring by the Representative which do not involve any actions of MeWe’s personnel other than accepting the order and delivering the Offering; provided that Direct Sales shall not include any sales to customers who were customers of MeWe, or which MeWe had directly promoted its Offerings in the then-prior twelve (12) month period, prior to MeWe’s receipt of the applicable order. For the avoidance of doubt and without limitation, any sales which require negotiation by MeWe’s personnel (e.g. sales that cannot be automatically used or ordered by a subscriber to MeWe’s generally available on-line Offerings) will not be a Direct Sale.
5. “Documentation” means any manuals, specifications and other related documents associated with the Offerings provided by MeWe to Representative hereunder.
6. “Intellectual Property Rights” means all patent, copyright (including any rights in the source code), database rights, designs, design rights, trademarks, service marks, trade and business names, domain names, trade secrets and all other intellectual and intangible property rights, in each case whether registered or unregistered and including all registrations and applications therefore, and all continuations, continuations in part, divisional applications, re-examinations and renewals of any of the foregoing and all associated goodwill, in each case in any jurisdiction.
7. “On-Line Sales” means on-line purchases of MeWe’s Offerings which are made (i) immediately after being directed to MeWe’s site from the Representative’s site or (ii) where the customer provides a Affiliate code (provided by MeWe to Representative from time to time) which indicates the Representative referred such customer, in each case where the sale is effected on MeWe’s website without any involvement of MeWe’s or Representative’s sales personnel.
8. “MeWe Offerings” or MeWe’s “Offerings” shall mean the temperature and humidity monitoring system (“Therma Monitoring”) offered by MeWe and specified in writing or by email by MeWe from time to time.
9. “Affiliate Fees” shall have the meaning assigned to it in Section 4.1 below.
10. “Referred Sales” means sales of Offerings resulting from Affiliates of prospective customers by Representative to MeWe, which meets one or more of the following criteria: (i) Affiliates made to MeWe in writing or by email (provided that such email is acknowledged and confirmed by return writing or email, (ii) use by a new customer of MeWe of a Affiliate code that MeWe provides to Representative from time to time but where the sale of the Offerings does not qualify as an On-line Sale or Direct Sale, (iii) additional purchases of MeWe’s Offerings by customers who were previously the customer in an On-line Sale or a Direct Sale; provided that (a) Referred Sales shall not include any sales to customers who were customers of MeWe, or which MeWe had directly promoted its Offerings in the then-prior twelve (12) month period, prior to the Affiliate by Representative, (b) no sales after six (6) months from the initial Covered Sale to the applicable customer shall be Referred Sales.
APPOINTMENT AND SALES PROCESS
1. Appointment. Subject to the terms and conditions herein, MeWe hereby appoints Representative on a non-exclusive basis as an authorized sales representative to promote Covered Sales of MeWe’s Offerings during the term of this Agreement.
2. Non-Exclusivity. MeWe reserves the right to market and license, or to use other sales Affiliate representatives, resellers or joint marketers to market and license MeWe’s Offerings without limitation under this Agreement.
3. Covered Sales Processes. When Representative makes a Direct Sale, Representative shall provide the order to MeWe who shall effectuate the sale and bill the customer directly, except as contemplated by Section 4.2 hereof. For each on-line sale of MeWe’s Offerings by MeWe, MeWe will track whether such sale qualifies as an On-Line Sale or Referred Sale hereunder. For each other sale of MeWe’s Offerings by MeWe, MeWe will track whether such sale qualifies as a Referred Sale hereunder.
4. Affiliate Codes. MeWe will provide the Representative with Affiliate codes from time to time, which shall be codes that identify Representative as the referring party when a customer purchases or subscribes to MeWe’s Offerings. The Representative may provide those Affiliate codes to prospective customers (i) to whom the Representative speaks to by phone, (ii) to whom the Representative provides written or email marketing materials regarding MeWe’s Offerings or (iii) who visit Representative’s web site(s).
5. Pricing. All Covered Sales shall be at MeWe’s list price or another price agreed by MeWe on a case-by-case basis.
6. Restrictions. Representative shall not have any right hereunder to sublicense, demonstrate or distribute MeWe’s Offerings, except as may be approved by MeWe on a case-by-case basis. All such activities shall be undertaken solely by MeWe or its designee.
7. Contacts. Each Party shall designate a primary contact and a secondary contact to serve as the initial interface with the other Party concerning all business, relationship, issues and/or questions concerning the subject matter of this Agreement.
MARKETING AND PROMOTION
1. Promotion by Representative. Representative shall, during the term of this Agreement, use good faith efforts to promote, market, and solicit orders for MeWe’s Offerings.
2. Accuracy of Information. Representative shall to the best of the Representative’s knowledge represent MeWe’s Offerings in an accurate and complete manner and at all times avoid misleading or unethical business practices and shall make no claim or representation relating to the performance or functionality of MeWe’s Offerings other than as expressly set forth by MeWe in the Documentation or other written material of MeWe intended for public distribution.
3. Representative Marketing Materials. Representative shall provide to MeWe copies of all advertising and marketing materials referencing MeWe’s Offerings prepared by Representative prior to the release or use of such materials, for MeWe’s prior review and approval. All such materials will be in compliance with MeWe’s then current trademark and copyright notice requirements herein and Representative shall make all reasonable modifications thereto as requested by MeWe.
4. Policies. Representative will abide by all policies and procedures presented to the Representative which have been established by MeWe from time to time regarding the solicitation, promotions, and other matters related to MeWe’s Offerings.
5. Expenses. The Parties will bear all their respective costs and expenses incurred in connection with its business and the performance of its obligations under this Agreement, and will be solely responsible for the acts and expenses of their respective employees and agents.
Affiliate FEES AND PAYMENT
1. Affiliate Fees. MeWe shall pay to Representative fees (the “Affiliate Fees”) for Covered Sales hereunder in the amounts set forth in Schedule A. MeWe may reduce Affiliate Fees to the extent any commissions or affiliate fees are payable by MeWe to a third party on the same Covered Sales. In addition, if Representative makes a sale of MeWe’s Offerings that is not identical to other products or services previously sold to that customer and that does not qualify as a Direct Sale or Referred Sale only because (a) that customer is an existing customer of MeWe or (b) MeWe has promoted products to such customer in the then-prior twelve (12) months, then MeWe will, in good faith but in its sole discretion, evaluate whether such sale was made as a result of Representative’s efforts and, if so, will treat such sale as if such customer were not an existing customer of MeWe and MeWe had not promoted products to such customer in the then-prior twelve (12) months.
2. Payment. All payments due hereunder shall be paid in U.S. dollars. Affiliate Fees due Representative are payable at ninety (90) days from the date in which the Affiliate Fees accrued.
INTELLECTUAL PROPERTY
1. Ownership. Representative acknowledges that MeWe or its licensors own all right, title and interest, including, without limitation, the Intellectual Property Rights, in and to MeWe’s Offerings, Documentation and any copies thereof. Representative is not granted any right, title or interest in or to MeWe’s Offerings, the Documentation or the Intellectual Property Rights therein.
2. Trademarks. Any reproduction, distribution, or use of MeWe’s trademarks or trade names shall be approved in advance by MeWe, and shall be consistent with MeWe’s branding and trademark usage guidelines. Any such permitted use, advertising, distribution, or reproduction shall be solely in connection with Representative’s exercise of its marketing and distribution rights hereunder. Representative shall not market MeWe’s Offerings in any way that implies that such MeWe’s Offerings are the proprietary property of any party other than MeWe and its licensors.
3. Proprietary Markings. Representative shall not remove, or allow to be removed, any patent, trademark, copyright, trade secret, or other proprietary rights notice placed by MeWe or its supplier on the Documentation or any marketing or promotional material provided MeWe to Representative hereunder. All proprietary markings shall be in the form, location, and quality specified by MeWe. Representative shall not register any trademark, trade name, corporate name, logo, copyright or design of MeWe, or anything confusingly similar thereto, anywhere in the world.
4. Submissions. Each Party agrees that such Party will not provide any ideas, concepts or other suggestions regarding the other Party’s business or services that infringes or violates any rights of any third party. If a Party submits any such suggestions to the other Party, the submitting Party agrees that such submission is non-confidential for all purposes. The submitting Party automatically grants to the other Party a non-exclusive, royalty-free, sublicensable, perpetual, irrevocable, worldwide license to use, reproduce, create derivative works from, modify, publish, edit, translate, distribute, perform, and display such suggestions in any manner and to make, have made, use, import, offer to sell and sell products and services incorporating such suggestions.
INDEMNITY
1. By Representative. Representative will defend and indemnify MeWe and its Affiliates, agents, employees, officers, and representatives against and hold such parties harmless from any third party claims of liability or damage (including, without limitation, reasonable third party legal fees and costs) assessed against or incurred by such persons arising out of or in connection with: (i) any grossly negligent act or omission by, or wilful misconduct of, the employees or agents of Representative; (ii) any warranty, condition, representation, indemnity or guarantee made or granted by Representative with respect to MeWe’s Offerings (other than any warranty, condition, representation, indemnity or guarantee which is provided by MeWe) or (iii) any material omission or inaccuracy in Representative’s statements, warranties, representations, advertisements or promotional materials that relate to MeWe’s Offerings.
TERM AND TERMINATION
1. Term. This Agreement shall commence on the Effective Date, and shall continue to be effective for a period of one (1) year thereafter, at which point this Agreement shall Terminate, unless the Parties explicitly agree in writing to renew this Agreement for an additional one (1) year term at that time.
2. Termination by Either Party. Without limiting any other rights available under the law or this Agreement, this Agreement shall continue in accordance with Section 7.1 above unless earlier terminated:
  1. by either Party, if the other Party materially defaults on its obligations hereunder and fails to cure such default within thirty (30) days after having been given notice of such default; or
  2. by either Party for any or no reason upon thirty (30) days prior written notice;
  3. effective immediately upon notice if Representative materially breaches Sections 5 or 9 herein; or
  4. effective immediately and without any requirement of notice, in the event that (i) the other Party files a petition in bankruptcy, files a petition seeking any reorganization, arrangement, composition or similar relief under any law regarding insolvency or relief for debtors; or makes an assignment for the benefit of creditors, (ii) a receiver, trustee or similar officer is appointed for the business or property of the other Party, (iii) any involuntary petition or proceeding under bankruptcy or insolvency law is instituted against the other and is not stayed, enjoined, or discharged within sixty (60) days, or (iv) the other Party adopts a resolution for, or undertakes to effect, a discontinuance of its business or dissolution.
3. Effect of Termination. Upon termination of this Agreement for any reason, all rights and obligations of the Parties shall immediately terminate and Representative shall: (i) immediately cease to represent itself as an authorized sales representative of MeWe; (ii) return to MeWe any advertising and other materials furnished to it by MeWe; (iii) remove and not thereafter use any signs containing the name or trademarks of MeWe; and (iv) destroy all of its advertising matter and other pre printed matter remaining in its possession or under its control containing the name of MeWe or any of its Offerings and related MeWe trade names or trademarks. Termination shall be in addition to, and shall not prejudice, any of the Parties’ other remedies at law or in equity.
4. No Compensation. Representative agrees that neither it nor its employees shall be entitled to any compensation or severance payment resulting from the fact of the termination of this Agreement or relating to any goodwill created by Representative, and whether relating to loss of prospective sales, investments, compensation or goodwill. Representative, for itself and on behalf of its employees, hereby waives any right it may have under any applicable laws with respect to any such payments, including but not limited to applicable termination, labour, social security or other similar laws or regulations.
5. Survival. Notwithstanding any termination or expiration of this Agreement, Sections 1, 4, 5, 6, 7.3, 7.4, 7.5, 8, 9 and 10 (as applicable) shall survive and remain in effect in accordance with their terms. Termination for any reason or expiration of this Agreement shall not relieve either Party from any liability which at the time of termination or expiration already has accrued to the other Party hereto or which thereafter may accrue in respect of any act or omission prior to termination or expiration, or from any obligation which is expressly stated herein to survive termination or expiration.
CONFIDENTIALITY
1. As used in this Agreement, “Confidential Information” of MeWe shall mean MeWe’s Offerings, Documentation, the terms and pricing under this Agreement and all proprietary information disclosed by MeWe or any of its Affiliates which by its nature appears to be confidential whether provided in writing, verbally or visually and to the extent previously, presently, or subsequently disclosed to Representative, including but not limited to ideas, techniques, drawings, works of authorship, models, inventions (whether or not patentable), data, databases, know-how, processes, information related to the current, future, and proposed products and services, financial information, customer lists, employees, business and contractual relationships, business forecasts, business plans, sales, marketing plans and information relating to third parties; and “Confidential Information” of Representative shall mean the terms and pricing under this Agreement.
2. A Party’s Confidential Information shall not include information that:
  1. is or becomes a part of the public domain through no act or omission of the other Party;
  2. was in the other Party’s lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the disclosing Party; or
  3. is lawfully disclosed to the other Party by a third party without restriction on disclosure.
3. Each Party will hold the other Party’s Confidential Information in confidence and, unless required by law, will not make the other Party’s Confidential Information available in any form to any third party or use the other Party’s Confidential Information for any purpose other than to perform its obligations under this Agreement, for a period of fifteen (15) years from the date of termination or expiration of this Agreement.
4. Each Party shall only permit access to Confidential Information of the other Party to those of its Affiliates, employees, officers, directors or authorized representatives or any of its affiliates’ employees, officers, directors or authorized representatives (collectively, the “Related Parties”) having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein. Each Party shall be responsible for ensuring that their respective Related Parties do not disclose or distribute Confidential Information in violation of the terms of this Agreement.
5. Following the termination or expiration of this Agreement, Representative shall (a) return to MeWe all tangible materials containing or including any items of Confidential Information, (b) delete any electronically stored and destroy all tangible materials created by Representative which incorporate or include such Confidential Information, and (c) at MeWe’s request, shall provide to MeWe an affidavit attesting to such return, deletion or destruction.
WARRANTY DISCLAIMER; LIMITATION OF LIABILITY
1. Warranty Disclaimer. NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, TITLE OR NON-INFRINGEMENT. NEITHER MEWE NOR ITS LICENSORS WARRANT THAT THE OPERATION OF MEWE’S OFFERINGS WILL BE UNINTERRUPTED, FREE FROM DEFECTS OR ERROR-FREE OR THAT THE PRIMARY’S OFFERINGS WILL MEET ANY PROSPECT’S REQUIREMENTS.
2. Limitation of Liability. NEITHER PARTY (AND IN THE CASE OF MEWE, ITS LICENSORS) SHALL BE LIABLE TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR: (A) LOSS OF ACTUAL OR ANTICIPATED PROFIT, (B) LOSSES CAUSED BY BUSINESS INTERRUPTION, (C) LOSS OF GOODWILL OR REPUTATION, (D) LOSS OF OR CORRUPTION OF DATA, OR (E) ANY INDIRECT, PUNITIVE, EXEMPLARY, MULTIPLE, SPECIAL OR CONSEQUENTIAL COST, EXPENSE, LOSS OR DAMAGE, EVEN IF SUCH COST, EXPENSE, LOSS OR DAMAGE WAS REASONABLY FORESEEABLE OR MIGHT REASONABLY HAVE BEEN CONTEMPLATED BY THE PARTIES AND WHETHER ARISING FROM BREACH OF CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE.
3. THE MAXIMUM LIABILITY OF EACH PARTY AND ITS LICENSORS TO THE OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING FROM BREACH OF CONTRACT, TORT, NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE, SHALL NOT EXCEED IN AGGREGATE THE Affiliate FEES PAID BY MEWE TO REPRESENTATIVE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE APPLICABLE CLAIM.
4. THIS SECTION 9 SHALL NOT LIMIT THE INDEMNIFICATION OBLIGATIONS OF THE PARTIES PURSUANT TO SECTION 6 OR ANY DAMAGES ARISING FROM A BREACH OF CONFIDENTIALITY OBLIGATIONS PURSUANT TO SECTION 8.
GENERAL
1. Independent Contractors. The relationship between MeWe and Representative established by this Agreement is that of independent contractors and MeWe and Representative shall each conduct its respective business at its own initiative, responsibility and expense, and shall have no authority to incur any obligations on behalf of the other, except as otherwise provided herein. Neither execution nor performance of this Agreement shall be construed to have established any joint venture or partnership between the Parties. Neither Party shall in any manner state, imply, or indicate that such Party is a partner, joint venturer, authorized representative, or agent of the other Party, except with respect to the express appointments set forth herein. This Agreement does not constitute a partnership for tax purposes.
2. Compliance with Laws. Representative shall at all times comply with all applicable laws in all applicable parts of the Territory countries in the exercise of its rights and the performance of its duties under this Agreement.
3. Delay and Force Majeure. Neither Party shall be liable for any delay or failure in performing any of its obligations under this Agreement if such delay or failure is caused by circumstances outside the reasonable control of the Party concerned. This includes, but is not restricted to, any delay caused by any act or default of the other Party.
4. Waiver of Remedies. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
5. Subcontracting and Assignment. MeWe may subcontract performance of all or any of its obligations under this Agreement and may assign the benefit of this Agreement to any third party. Representative may not assign, subcontract or transfer any of its rights or obligations under this Agreement to any third party without MeWe’s prior written consent, and may not sublicense MeWe’s Offerings; provided that either Party may assign this Agreement without consent to an acquirer of such Party through a merger, consolidation, reorganization or sale of all or substantially all assets.
6. Variations. This Agreement shall not be amended or modified except in writing by duly authorized representatives of the Parties.
7. Third Party Rights. Except for MeWe’s licensors, it is not intended that anyone other than the Parties to this Agreement be entitled to obtain any benefit under it or to enforce any of its terms.
8. Severability. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
9. Notices. All notices which are required to be given under this Agreement shall be in writing and sent to the addresses of the Parties set out in the first page of this Agreement or to such other address as a Party may designate by notice given in accordance with this Section. Any such notice may be delivered personally, by first class pre-paid letter or facsimile transmission and will be deemed to have been received: by hand delivery, at the time of delivery; by first class mail, forty eight (48) hours after the date of mailing; and by facsimile transmission, immediately on transmission provided that the facsimile confirmation report shows that the facsimile transmission was successfully transmitted. Email may also be used for any notices not related to breach or termination of this Agreement; provided that such email shall be effective only if it is acknowledged and confirmed by return writing or email.
10. Entire Agreement. This Agreement (including the Schedules) forms the entire understanding of the Parties in respect of the matters dealt within it and supersedes all previous agreements, understandings and negotiations between them. Except from fraudulent misrepresentation, each of the Parties acknowledges and agrees that in entering into this Agreement it does not rely upon and shall have no remedy in respect of statement, representation, warranty or understanding of any person unless expressly set out in this Agreement.
11. Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, excluding: (i) its conflicts of laws principles; (ii) the United Nations Convention on Contracts for the International Sale of Goods; (iii) the 1974 Convention on the Limitation Period in the International Sale of Goods; and (iv) the Protocol amending the 1974 Convention, done at Vienna April 11, 1980. This Agreement shall be binding on the successors and assigns of each party. The Parties hereby submit to the exclusive jurisdiction of the federal and state courts located in the State of New York, USA for the resolution of all disputes hereunder.
12. Headings and References. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. All references in this Agreement to Sections or Schedules shall, unless otherwise provided, refer to Sections hereof or Schedules attached hereto, all of which Schedules are incorporated herein by this reference.
13. Counterparts. This Agreement may be executed in any number of counterparts, each of which, when taken together, shall be an original.

SCHEDULES:

Schedule A - Affiliate Fees

The Parties agree that the Affiliate partner will receive a $200 commission fee per client location that successfully purchases and installs Therma sensors. Payment to be disbursed once a customer purchases sensors using unique Affiliate code on checkout. Payment to be disbursed within 90 days of sale. Affiliate partner will need to provide W9 to company’s accounting department before first payment. Additional payments beyond the first location will be paid in 90 days of sale.

The parties agree that the Affiliate partner will receive an extra $100 on top of the commission fee agreed upon above per location that installed 4 or more Therma Sensors.

The parties agree that the Affiliate partner will receive additional Affiliate fee for recommending another Affiliate partner at the time and given that the party referred is successfully onboarded to the program. Payments get disbursed once the other technician sells its first location. Payment to be disbursed within 90 days of sale.

Hello Therma, Inc. Affiliate Program Terms & Conditions Affiliate Agreement

Last updated on February 24, 2023