Somnee Affiliate Program Terms & Conditions - StimScience Inc.

This Affiliate Agreement (the "Agreement") contains the complete terms and conditions between StimScience Inc, ("us", "we" or "StimScience") and you, regarding your application to and participation in the Somnee Affiliate Program (the "Program") as an affiliate of StimScience ("you" or "Affiliate"), and the establishment of links from Affiliate's social media accounts to our website, www.trySomnee.com (the "Somnee Site").

BY SUBMITTING AN APPLICATION TO JOIN OR BY PARTICIPATING IN THE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.

1. ELIGIBILITY TO PARTICIPATE IN THE PROGRAM

To participate in the Program, you must be a legal resident of the fifty (50) United States and at least eighteen (18) years of age or older. 

2. DEFINITIONS

"Affiliate" shall mean the individual applying to or participating in the Program by displaying StimScience’s products on the social media accounts owned or controlled by Affiliate, including but not limited to, Instagram, Facebook, TikTok, YouTube, newsletters, podcasts or blog posts (individually and collectively, "Affiliate's Social Platform"), using an affiliate tracking link (the "Link" defined below) in exchange for receiving a Referral Fee from StimScience for sales directly resulting from such display.

"Referral Fees" shall mean the amount Affiliate will be paid for each Qualified Purchase by a Referred Customer that Affiliate refers to StimScience, pursuant to the terms of this Agreement.

"Link" shall mean a unique tracking link provided by StimScience to Affiliate for Affiliate's use and posting on Affiliate's Social Platform in connection with a Post.

"Post" shall mean a post, story, tweet, video, podcast or blog, as applicable, made by Affiliate on Affiliate's Social Platform, showcasing the Product and subject to the terms of this Agreement.

"Product" shall mean the Somnee Headband product available for purchase from the Somnee Site. Affiliate is solely responsible for acquiring any such Product; however, from time to time, StimScience may gift Product to Affiliate as determined in its sole discretion.

"Qualified Purchase" shall mean a sale of StimScience Product(s) to a Referred Customer. For sake of clarity, a Qualified Purchase shall only include a sale of Product to a Referred Customer and shall not include the purchase of the Somnee Sleep Service subscription or any subsequent purchases of additional Product(s) or services from StimScience.

"Referred Customer" shall mean each new customer referred to the Somnee Site from Affiliate through a Link, that provides valid account and billing information and completes a Qualified Purchase.

3. ENROLLMENT IN THE PROGRAM

(a) To begin the enrollment process, Affiliate must submit a completed Program application.

(b) We will evaluate your application and notify you in a timely manner if the application is accepted or rejected. We may reject Affiliate's application for any reason, in our sole discretion, including if we determine that Affiliate's Social Platform is unsuitable for the Program. Unsuitability includes, without limitation, illegal, offensive, infringing content or content that we otherwise deem offensive. If Affiliate is accepted into the Program, Affiliate shall notify StimScience in writing of any significant changes to the content or structure of Affiliate's Social Platform within five (5) days of such change(s).

(c) For sake of clarity, submitting an application does not guarantee your acceptance into the Program. Applicants accepted into the Program will be determined by StimScience solely in its discretion. If you are accepted into the Program, StimScience expressly reserves the right to suspend or terminate your participation as an Affiliate and/or deactivate your Link, for any or no reason, with or without cause, at any time in its discretion. In the event of any such suspension, termination or deactivation, you will be notified by us in writing. StimScience further expressly reserves the right to modify, suspend or terminate the Program, and/or modify its Terms and Conditions, in whole or in part, at any time in its discretion, for any or no reason, and without notice to Affiliate.

4. LINKS

Affiliate shall not modify the Link in any way. We will not be responsible for errors that occur in the tracking of transactions if Affiliate has made or caused any such modification.

5. POSTS

(a) The Post: (i) must depict only Affiliate and no other person, unless such other person is at least eighteen (18) years of age or older (or the age of majority, whichever is greater) and a legal resident of the fifty (50) United States and Affiliate has obtained the consent of such person to be depicted in the Post (the "Permitted Third Party"); (ii) must tag and mention in captions @try.somnee (Instagram, Facebook) or @try_somnee (Twitter) in a clear and conspicuous manner (for example, in an Instagram Post, it must appear "above the fold" within the first three (3) lines of the post or superimposed in a story); (iii) may not mention, reference or show any brand that is competitive to StimScience or Somnee; (iv) must not defame, misrepresent or disparage StimScience or Somnee, its business, products or brands, or any third party brands, products or services competitive to StimScience and/or its business, products or brands; (v) must reflect Affiliate's actual, honest opinions, findings, beliefs, or experiences with Somnee and its business and products and will not contain any statements or representations about Company or its business and products which are not true or that is misleading or deceptive; (vi) shall be Affiliate's own original work, created solely by Affiliate, and will not infringe the copyright, trademark, privacy, publicity, or other personal or proprietary rights of any person or entity; (vii) shall not contain or reference content which is lewd, obscene, sexually explicit, pornographic, disparaging, defamatory, libelous, or otherwise illegal, offensive or inappropriate in any way; and (viii) shall not state that the Product is a medical device, “FDA approved”, or intended for the prevention or treatment of any disease or medical condition.

(b) Affiliate represents, warrants and agrees that it shall abide by all of the foregoing, as well as all applicable laws, rules and regulations, including the Federal Trade Commission's Endorsement Guides ("FTC Guides"), which require that material connections between advertisers and endorsers be disclosed, as well as the Community Guidelines, Terms of Use and other applicable policies of the social media platform used by Affiliate for its Post(s). We reserve the right to withhold Referral Fees and/or deactivate your Link and/or terminate your affiliate relationship with us if we determine, in our sole discretion, that you are not in compliance with any of the foregoing, including but not limited to, your noncompliance with the FTC Guides. Affiliate further represents and warrants that he/she has obtained any and all necessary consents of any Permitted Third Party.

6. ORDER PROCESSING

StimScience will process orders placed by Referred Customers who follow the Link from Affiliate's Social Platform to the Somnee Site. We reserve the right, in our discretion, to reject orders that do not comply with certain requirements that we may establish from time to time, including orders placed from locations where the Product is not available for delivery and orders placed by individuals under the age of 18. All aspects of order processing and fulfillment, including StimScience’s cancellation, processing, refunds, customer service and payment processing, will be our responsibility. We will track the Qualified Purchases generated by your Affiliate Link, at our discretion either directly or via a third party vendor, and we will make this information available to you through the Somnee Site. To permit accurate tracking, reporting and Referral Fee accrual, you must ensure that the Link between Affiliate's Social Platform accounts and the Somnee Site are properly formatted. We shall not be responsible for improperly formatted Links.

7. REFERRAL FEE DETERMINATION; QUALIFIED PURCHASES

(a) We will pay Affiliate a Referral Fee based on the number of Qualified Purchases and/or the sales value of Qualified Purchases generated by the Link on Affiliate's Social Platform.

(b) The Referral Fee amount and structure shall be determined by the method of payment selected by Affiliate in its Program application. 

(c) A "Qualified Purchase" will not include: (i) a purchase that was completed prior to the Affiliate joining the Program or was not tracked properly through an Affiliate Link; (ii) a purchase that StimSciencesuspects, in its sole discretion, is the result of fraud, which shall include but is not limited to, the use of software that generates real and fictitious information, multiple accounts from the same customer, or the referral of accounts that do not comply with this Agreement; or (iii) a purchase made by Affiliate through its own Affiliate Link.

(d) We reserve the right to withhold payment of Referral Fees to an Affiliate who has Referral Fees that are potentially fraudulent as determined by us in our sole discretion, to determine the legitimacy of the Referred Customers.

(e) We reserve the right to suspend the payment of Referral Fees at any time and indefinitely, if we suspect fraud or other improper activity or a potential breach of any of the terms of this Agreement by the Affiliate or a Referred Customer. We reserve the right to deduct from Affiliate's current and future Referral Fees any and all Referral Fees corresponding to any fraudulent, questionable or cancelled purchases.

(f) We reserve the right to immediately cancel or withhold for later review any Referral Fees that fail to meet the criteria of a "Qualified Purchase".

(g) Any attempt by Affiliate to manipulate, falsify or inflate Referred Customers, Qualified Purchases or Referral Fees to intentionally defraud StimScience or any violation of the terms of this Agreement constitutes immediate grounds for us to terminate your participation in the Program and will result in the forfeiture of any Referral Fees due to the Affiliate.

8. ACCRUAL AND PAYMENT OF REFERRAL FEES

(a) Referral Fees will be paid the first business day of each month from the Qualified Purchases associated therewith.

(b) Payment of Referral Fees will be made through Refersion Monthly Direct Payments. If the affiliate does not have a USA bank account, we will pay through PayPal.  We are not responsible for paying any third party fees charged by PayPal in order for you to receive your Referral Fees.  There is a 7 day waiting period to process payment for transactions, meaning each transaction will be approved after 7 days of processing. 

(c) We reserve the right, in our discretion, to change or modify the available referral fee payment methods or payment schedule at any time. You will be notified by us of any such changes, which shall take effect when posted on the Somnee Site.

(d) Affiliate acknowledges and agrees that we may fulfill our payment obligations under this Agreement through a third party service or vendor.

(e) We do not make any guarantee of a minimum amount of Qualified Purchases or that Affiliate will earn any amount of Referral Fee under this Agreement.

9. REPORTS OF QUALIFIED PURCHASES

You may log into your affiliate console to review your click through and potential Qualified Purchases statistics on a daily basis. The potential Qualified Purchases shown in this report have not been reviewed to confirm they meet all criteria for Qualified Purchases and, as such, Referral Fees may not be issued for all Referred Customers that appear in the affiliate console. In the event that Affiliate disputes a Qualified Purchase and/or Referral Fee, Affiliate must file a written report of such dispute with StimScience by email within ten (10) days after the subject Referral Fee is made and/or would otherwise have been due. Affiliate's failure to file a timely dispute shall result in forfeiture of Affiliate's right to dispute the subject Referral Fee.

10. POLICIES AND PRICING

Referred Customers who buy products through the Program will be deemed to be customers of StimScience. Accordingly, all Somnee Site terms, policies, and procedures concerning customer orders, customer service, and product sales will apply to such customers with respect to their transactions at the Somnee Site. We may change our terms, policies and procedures at any time consistent with applicable laws. Since prices and availability may vary from time to time, Affiliate may not display StimScience or Somnee price information on Affiliate's Post. We will use commercially reasonable efforts to present current and accurate information, but we cannot guarantee the availability or price of any particular product.

11. LIMITED LICENSE FOR USE OF SOMNEE LOGOS/TRADEMARKS

We grant to Affiliate a limited, non-exclusive, non-transferable, revocable license to use and display the Links, to access the Somnee Site through the Links and to use our trademark and logos solely in accordance with the terms of this Agreement, and only during the Term of this Agreement.

12. OWNERSHIP

As between Affiliate and StimScience, StimScience shall own all right, title and interest, including all Intellectual Property Rights, in and to the Somnee Site, the Program and the Links. For the purposes of this Agreement, "Intellectual Property Rights" means copyright rights, trademark rights, patent rights, trade secrets, moral rights, right of publicity, authors' rights, contract and licensing rights, goodwill and all other intellectual property rights as may exist now and/or hereafter come into existence and all renewals and extensions thereof, regardless of whether such rights arise under the laws of the United States or any other state, country or jurisdiction.

13. LICENSE TO USE OF POSTS AND AFFILIATE'S IMAGE

We agree that you shall retain ownership rights to your Posts and you hereby grant us the perpetual, worldwide, royalty-free right and license to publish, copy, re-post, link to or otherwise use your Posts, your Social Platform handle, your name, and your image and likeness as depicted in a Post, in whole or in part, for any purposes in our discretion, in any and all mediums, without limitation, and without additional compensation, notice, review or approval.

14. RESPONSIBILITY FOR AFFILIATE'S SOCIAL PLATFORM

Affiliate will be solely responsible for all content that appears on Affiliate's Social Platform. Such responsibility includes, without limitation: (i) the accuracy, timeliness and appropriateness of content posted on or to Affiliate's Social Platform; (ii) ensuring that posted materials do not violate or infringe upon the rights of any third party; and (iii) ensuring that posted content is not libelous or otherwise illegal.

15. INDEMNITY

Affiliate shall defend, indemnify and hold StimScience and its officers, directors and employees harmless from all claims, damages, and expenses (including, without limitation, reasonable attorneys' fees) relating to Affiliate's participation in the Program, breach of this Agreement or gross negligence.

16. TERM AND TERMINATION

(a) The term of this Agreement will begin upon our acceptance of Affiliate's application into the Program and will end when terminated by either party (the "Term"). Either party may terminate this Agreement at any time, with or without cause, by giving the other party prior written notice by email.

(b) StimScience expressly reserves all rights to terminate the Program, in whole or in part, at any time for any or no reason, as determined in its sole discretion, by giving Affiliate written notice by email.

(c) Upon termination of this Agreement, Affiliate shall promptly remove all Links and Program related content from Affiliate's Social Platform. Affiliate is only eligible to earn Referral Fees on Qualified Purchases occurring during the Term (including all steps required for a transaction to be a Qualified Purchase under this Agreement. In the event that an overpayment is made by StimScience, Affiliate agrees to promptly remit such excess payment upon notification by StimScience. StimScience may withhold Affiliate's final payment for a reasonable time to ensure that the correct amount is paid. The definitions contained in this Agreement and Sections 12, 13, 15 and 18 through 22, shall survive the termination of this Agreement, along with any other provisions that by their express terms do, or by their nature should, survive.

17. MODIFICATION

We may modify this Agreement at any time in our sole discretion; provided that the change shall solely apply to events occurring after the date on which you accept and agree to such modifications unless you otherwise agree herein. Such modifications shall take effect when posted on the Somnee Site. Modifications may include, but are not limited to, changes in the scope of available Referral Fees, Referral Fee amounts or percentages, payment procedures, Referral Fee payment schedules, and Program rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement, in which event you shall be entitled to your rights under the unmodified Agreement prior to the date of the applicable modification. Your continued participation in the Program following our posting of any modification on our website will constitute binding acceptance of the change.

18. INDEPENDENT CONTRACTOR RELATIONSHIP

For purposes of this Agreement, Affiliate will NOT be considered an agent, employee or representative of StimScience and shall remain in all respects an independent contractor. Affiliate agrees that Affiliate is not an employee and has no expectation of becoming an employee or agent of StimScience while this Agreement is in effect or at any other time.  You will have no authority to make or accept any offers or representations on our behalf. Affiliate has no authority to act for or on behalf of StimScience or to bind StimScience in any legal contracts.  Affiliate agrees to comply with all federal, state, and local tax laws applicable to the operation of Affiliate's business, including, but not limited to, the reporting of all gross receipts therefrom as income from the operation of a business, the timely payment of income tax (including any estimated tax), the timely payment of all self-employment taxes, compliance with all employment tax requirements for withholding on any employees or subcontractors used by Affiliate, and compliance with state employment and workers' compensation laws.

19. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU UNDERSTAND AND AGREE THAT STIMSCIENCE SHALL NOT BE LIABLE TO YOU FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN OR INABILTIY TO PARTICIPATE IN THE PROGRAM (HOWEVER ARISING, AND REGARDLESS OF THE THEORY OF RECOVERY), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR TOTAL LIABILITY TO AFFILIATE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.

20. DISCLAIMER OF WARRANTY

THE PROGRAM IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND. STIMSCIENCE EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). IN ADDITION, STIMSCIENCE MAKES AND GIVES NO WARRANTY (i) THAT THE PROGRAM WILL MEET YOUR REQUIREMENTS, (ii) THAT THE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, AND (iii) THAT THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE PROGRAM WILL MEET YOUR EXPECTATIONS. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PROGRAM IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL. STIMSCIENCE FURTHER MAKES NO REPRESENTATION THAT THE OPERATION OF THE SOMNEE SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND WE WILL NOT BE LIABLE FOR ANY SUCH INTERRUPTIONS OR ERRORS.

21. MISCELLANEOUS

(a) Any notice provided for or permitted under this Agreement will be treated as having been given when (i) delivered personally, (ii) sent by email; (iii) sent by nationally recognized commercial overnight courier with written verification or receipt; or (iv) mailed postage prepaid by certified or registered mail, return receipt requested, to the party to be notified, at the address set forth on Affiliate's application, in the case of Affiliate, and the postal and/or email address, as applicable, set forth below for StimScience. This provision shall not apply to Section 17, "Modifications."

StimScience Inc.

2115 Milvia Street

Suite 400

Berkeley, CA 94704

Attn: Natasha Chu

Email: [email protected]

(b) If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such invalidity or unenforceability shall not impair, affect or render invalid or unenforceable any other provision of this Agreement, and such invalid or unenforceable provision shall be replaced by a provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable provisions.

22. GOVERNING LAW; ARBITRATION; NO CLASS ACTION

To the fullest extent permitted by law, and subject to the limitations on arbitration set

forth in subsection (a)(i) and (ii) below, you and StimScience (collectively, the “parties”) agree as follows:

(a) The parties agree to submit to mandatory binding arbitration any and all claims, disputes or causes of action relating to or arising from this Agreement and/or the Program (the “Arbitrable Claims”), except as follows:

(i) Each party may seek injunctive relief in court related to the improper use, disclosure or misappropriation of that party’s private, proprietary, confidential and/or trade secret information.

(b) For all (i) Arbitrable Claims, and (ii) claims covered by subsection (a)(i) above that you voluntarily elect to adjudicate through arbitration rather that in court, the arbitration shall be conducted in San Francisco, CA through JAMS before a single neutral arbitrator, in accordance with the JAMS arbitration rules then in effect. The arbitrator shall issue a written decision that contains the essential findings and conclusions on which the decision is based.

(c) This arbitration section is governed by and will be construed in accordance with the Federal Arbitration Act, 9 U.S.C. 1, et seq. If, for any reason, any term of this arbitration provision is held to be invalid or unenforceable, all other valid terms and conditions of this arbitration provision shall be severable in nature, and remain fully enforceable.

(d) Should either party pursue any other judicial or administrative action with respect to any matter included within the scope of this binding arbitration provision, the responding party will be entitled to recover its costs, expenses and attorneys' fees incurred as a result of such action. Further, any and all disputes, claims and causes of action arising out of or connected with this Agreement and/or the Program, will be resolved individually, without resort to any form of class action.

23. CONFIDENTIALITY

Each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, StimScience pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process.

24. ENTIRE AGREEMENT

This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous representations, discussions, negotiations and agreement, whether written or oral.