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Affiliate Program Terms and Conditions

These Affiliate Program Terms and Conditions (“Terms”) along with the Affiliate Application Form to which these Terms are attached (the “Form”, together with the Terms, this “Agreement”) contains the complete terms and conditions that apply to PPUSA’s affiliate program (the “Program”). By tapping “Accept,” you (either an individual or a legal entity) will confirm your desire to participate in the Program; your submission of the completed Form; and your understanding, acceptance, and receipt of these Terms. Upon your acceptance into the Program by Pacific Pharmaceuticals USA, Inc. (“PPUSA”), this Agreement will become effective and form a binding legal contract between you and PPUSA. PPUSA will thereafter create an electronic record of this Agreement.

1. Enrollment in the Program

PPUSA will evaluate your Form and will notify you of your acceptance or rejection for participation in the Program. Such acceptance or rejection is made at PPUSA sole discretion. Notwithstanding the foregoing, you will be categorically rejected if, in PPUSA’s sole judgment, the website(s) you listed on the Form (the “Site”):

  1. Promotes violence or hate toward any persons or groups.
  2. Promotes unlawful discrimination, including but not limited to discrimination based on race, sex, age, religion, nationality, disability, or sexual orientation.
  3. Contains material or promotes activities that are considered offensive, unethical, obscene, or immoral, defamatory, fraudulent, harassing, inappropriate, or violative of applicable law, regulation, rule, court order or order of any applicable governmental authority.
  4. Misrepresents itself as a Pacific Nature’s or PharmaAmerica website by using the “look and feel” of or text from any PPUSA’s websites (www.pacificnatures.com or www.pharma-america.com).
  5. Includes “Pacific Nature’s” or “PharmaAmerica” or variations or misspellings thereof in its domain name (e.g., “pacificnatures.mydomain.com”, “pharma-america.co.uk”, etc.).
  6. Otherwise violates the intellectual property rights of PPUSA or its affiliates.
  7. Link to or provide a portion of their Commission (as defined below) to websites or organizations that are described in any of the above criteria.

If you are accepted to the Program, you must submit a completed, accurate IRS Form W-9 to PPUSA that matches the information you provided in the Form. Until PPUSA receives such W-9, you will not be paid any Commission.

At any time prior to the termination of this Agreement, you must immediately notify PPUSA of any change to the information you provided in the Form, including a change in residency outside of the U.S.. PPUSA reserves the right to terminate this Agreement, immediately and without penalty or prior notice, in PPUSA’s sole discretion based on a changing in said information.

If the Form is not accepted, you may reapply to the Program at any time; however, you may not link to PPUSA’s websites unless you have been approved for the Program.

2. Affiliate Links

Upon acceptance into the Program, PPUSA will make available to you on our partner portal (https://XXXXX) (the “Portal”) customized hyperlinks in the form of URLs or an icon/graphic element containing tracking information for your use in the Program (the “Links”). You may display the Links as often and in as many areas on the Site as you like. For purposes of determining Commissions, PPUSA will track only valid Links displayed on the Site. PPUSA will use the Links to track sales made to customers who purchase products through a Link from the Site to PPUSA’s websites. To permit accurate tracking, reporting and Commission accrual, you must ensure that the Links are properly formatted. PPUSA is not responsible for improperly formatted Links regardless of whether you have made amendments to the code or not.

If you choose to display graphic Links, you will display in the Site only those graphic Links in the form and appearance provided, without alteration.

You acknowledge that by participating in the Program and placing a Link on the Site, PPUSA may receive information from or about visitors to the Site or communications between the Site and those visitors. Your participation in the Program constitutes your specific and unconditional consent to, and authorization for PPUSA’s access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in PPUSA’s Privacy Policy: http://pacificnatures.com/privacy-policy/

3. Your Obligations

As a condition to your acceptance and participation in the Program, you will comply at all times with all laws, statutes, ordinances, rules, regulations, orders, judgments, and decrees applicable to you, the Site, your business, and your participation in the Program, including but not limited to the Federal Trade Commission (“FTC”) Act, the FTC’s Endorsement Guides, and all applicable export laws, statutes, ordinances, rules and regulations of the United States (“U.S.”) and any other applicable jurisdiction. In addition, you will not:

  1. use the name “Pacific Nature’s” or “PharmaAmerica” or any variation thereof, in any manner not expressly authorized by this Agreement;
  2. use or otherwise incorporate the words “Pacific Nature’s” or “PharmaAmerica” or variations or misspellings thereof in the domain name of the Site (e.g., “pacificnatures.mydomain.com”, “pharma-america.co.uk”, etc.), on any meta tags of the Site, or any part thereof in hidden text, source code, or in searchable keywords;
  3. engineer the Site in such a manner that diverts internet traffic away from PPUSA’s websites;
  4. attempt to modify or alter PPUSA’s websites or any websites with which PPUSA is in any way affiliated;
  5. make any representations, either express or implied, or create an appearance, in any manner, that a visitor to the Site is visiting PPUSA’s websites (e.g., “wrapping” “framing” PPUSA’s websites), without PPUSA’s express prior written approval;
  6. make the Site a copy or resemblance of the design of PPUSA’s websites, nor will the Site falsely create the impression that the Site is PPUSA’s website or is part of PPUSA’s family of websites;
  7. “scrape” or “spider” for content including but not limited to images, logos, and text PPUSA’s websites or any websites with which PPUSA is in any way affiliated;
  8. generate or send any email messages using or containing PPUSA’s name or logo, or any variation thereof, any of IP (as defined below) or any of PPUSA’s products, without PPUSA’s express prior written permission;
  9. forward, redistribute, or otherwise repurpose any email communications or newsletters that PPUSA send to PPUSA’s affiliates or customers;
  10. generate or send any unsolicited email (spam) related to this Agreement;
  11. modify price information regarding PPUSA’s products or offers on the Site;
  12. create, link to, or host any type of shopping cart between PPUSA’s websites and the Site;
  13. directly or indirectly place, or cause to be placed any PPUSA product order exceeding 50 or more units of the same SKU;
  14. make any statement or claim that (i) any product sold by PPUSA is intended to diagnose, treat, cure or prevent any disease or illness or (ii) is otherwise violative of applicable law, regulation, rule, court order or order of any applicable governmental authority; or
  15. sell or divert any of PPUSA’s products to countries subject to U.S. sanctions or to individuals or entities identified on U.S. sanctioned or denied party lists (e.g., the U.S. Treasury Department’s Office of Foreign Assets Control’s Specially Designated Nationals List).

4. Responsibility for the Site

You acknowledge that by entering into this Agreement PPUSA does not assume, and should not be exposed to, the business and operational risks associated with your business or any aspects of the operation or content of the Site. You will be solely responsible for the development, operation, and maintenance of the Site and for all the content that appears on the Site (other than content provided by PPUSA under this Agreement (“Content”)). These responsibilities include:

  1. the technical operation of the Site and all related equipment;
  2. the accuracy, timeliness and appropriateness of material posted on the Site (including but not limited to all product-related materials);
  3. ensuring that material posted on the Site (other than Content that is used as permitted hereunder) does not violate or infringe upon the rights of any third party (including but not limited to copyrights, trademarks, privacy, or other personal or proprietary rights);
  4. ensuring that content (other than Content that is used as permitted hereunder) posted on the Site is not libelous or otherwise illegal; and
  5. notifying PPUSA of any malfunctioning Links or other problems with your participation in the Program.

PPUSA has the right, in PPUSA’s sole and absolute discretion, to monitor the Site at any time and from time to time to determine whether you are in compliance with the terms of this Agreement, and you agree to provide PPUSA with unrestricted access to the Site for that purpose.

PPUSA disclaims all liability for all matters relating to the Site (other than Content).

The information provided on PPUSA’s websites and in PPUSA’s online advertisements is intended for a consumer’s general knowledge only and is not a substitute for professional medical advice or treatment for specific medical conditions. Consumers should always seek the advice of a physician or other qualified health care provider with any questions regarding medical conditions. The information on PPUSA’s websites and in PPUSA’s online advertisements has not been evaluated by the U.S. Food and Drug Administration and is not intended to diagnose, treat, cure, or prevent any disease. Consumers should never disregard medical advice or delay in seeking it because of something they have read on PPUSA’s websites or in PPUSA’s online advertisements. The Site will not represent PPUSA’s websites, PPUSA’s online advertisements or PPUSA’s products in any way that will conflict with these statements.

The Site will not copy, reproduce, display, or contain any content obtained or derived from PPUSA’s websites or any materials which are proprietary to PPUSA, except (i) with PPUSA’s prior written permission, or (ii) materials which are obtained by you via PPUSA under the provisions of this Agreement or the policies or instructions related to this material. You will not purchase or otherwise contract with a third party to exploit any of PPUSA’s proprietary materials for the purpose of causing the Site to appear as a search result or for any other reason.

5. Orders

You will earn a referral fee for orders of products placed by customers via the Links (“Orders”) according to fee schedules established by PPUSA (“Standard Commissions”). PPUSA will process all Orders under PPUSA’s policies and applicable legal requirements.

A valid Order will accrue Commissions (as defined below) if a customer does the following:

  1. uses a web browser that has its cookies setting enabled on a device;
  2. follows a Link from the Site to PPUSA’s websites (provided it is the last link to PPUSA’s websites that the customer uses before making the purchase).
  3. allows a cookie to be placed on the device at that time, expiring in 30 days;
  4. purchases a product(s) using PPUSA’s online ordering system within 30 days of the cookie being placed on the device;
  5. accepts delivery of the product at the shipping destination;
  6. remits full payment to PPUSA; and
  7. not purchase products for resale.

Reports summarizing Order activity will be available to you through the Portal. The form, content, and frequency of the reports are limited to those reports and capabilities available through the Portal and may vary from time to time in PPUSA’s and the Portal’s reasonable discretion.

PPUSA is not responsible for any changes it may make in the format, timing, or types of reports made available to you, nor for the accuracy or completeness of such reports.

6. Offers

From time to time, PPUSA may post on the Portal special promotional campaigns (“Offers”) on specific PPUSA products (“Offer Products”) that you may participate in. Such Offers will utilize custom Links to track sales of Offer Products (“Offer Links”) and may be subject to a different referral fee (“Offer Commissions”, together with Standard Commissions, “Commissions”). Offer Commissions, if any, will be specified in the Offers, but will otherwise be computed and paid to you as specified for Commissions below.

The terms of Offers will be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of a specific Offer and the terms of this Agreement, the terms of the Offer will govern.

At any time prior to PPUSA providing you an Offer Link, PPUSA may, with or without notice, (a) change, suspend or discontinue any aspect of an Offer, or (b) remove, alter, or modify any graphic Offer Links provided to you pursuant to an Offer. You agree to promptly implement any request from PPUSA to remove, alter or modify any graphic or banner ad submitted on the Site that is being used in connection with an Offer.

Either party may terminate an Offer at any time by deleting its acceptance of the Offer through the Portal. Termination of a specific Offer will not be deemed to terminate any other Offers. Termination of this Agreement will also terminate any outstanding Offer.

7. Computation of Commissions

You will earn Commissions based on the Net Price of all completed, valid Orders. “Net Price” means the sale price of products listed on PPUSA’s websites less any coupon or customer discount and excludes (i) amounts collected by PPUSA for taxes, shipping, handling, insurance, rebates, gift-wrapping and similar ancillary services; (ii) amounts not collected due to credit card fraud or bad debt; and (iii) costs incurred due to invalid customer name or address information, returns, suspected or actual fraud. Commissions may be further reduced if PPUSA determines, in its sole discretion, Orders to be unacceptable.

Please note, PPUSA is unable to track Orders from web browsers that do not have their cookies setting enabled, as such you will not earn to Commissions on such Orders. Additionally, you will not earn Commissions on:

  1. any orders using promotional codes exclusive to PPUSA’s other marketing channels, such as e-mail or print promotions;
  2. any orders requiring Customer service invoice adjustments;
  3. any orders that are reorders;
  4. any orders you directly or indirectly place or cause to be placed exceeding (i) $500 in value or (ii) 50 or more units of the same SKU; or
  5. any orders you directly or indirectly place that PPUSA considers products purchased for resale, including but not limited to you placing 10 or more Orders within a one-month period.

8. Commission Payment

You will be paid accrued Commissions on a monthly basis through the Portal according to the payment procedure stated on the Portal. You are solely responsible for any and all tax obligations due to all taxing authorities arising from or in connection with your participation in the Program, including but not limited to taxes resulting from payment of Commissions to you.

PPUSA reserves the right to withhold payment of Commissions for orders or referrals that were obtained fraudulently or through misrepresentation pending an investigation of suspected fraud or misrepresentation by PPUSA or the relevant legal authorities. PPUSA is obligated by U.S. federal law to obtain tax information from you if you are a U.S. citizen, U.S. resident, or U.S. corporation or if you are not a U.S. citizen or resident but your business is taxable in the U.S. If PPUSA believes it is obligated to obtain tax information from you and you do not provide this information to PPUSA after PPUSA has requested it, PPUSA may withhold Commissions until you provide this information or otherwise satisfy PPUSA that you are not a person from whom PPUSA are required to obtain tax information.

9. Policies and Pricing

Customers who buy products through the Program will be deemed to be PPUSA’s customers, without affecting their status as your customer. Accordingly, only PPUSA’s rules, policies and operating procedures concerning customer orders, customer service and sales will apply to those customers. PPUSA may change PPUSA’s policies and operating procedures at any time in PPUSA’s sole discretion. For example, PPUSA will determine the prices to be charged for products sold under the Program in accordance with PPUSA’s own pricing policies. Product prices and availability may vary from time to time. PPUSA will use commercially reasonable efforts to present accurate information, but PPUSA cannot guarantee the availability or price of any particular product or the error-free or uninterrupted operation of PPUSA’s websites.

10. Term of this Agreement

The term of this Agreement will begin upon your acceptance into the 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 prior written notice of termination. In addition, PPUSA reserve the right to terminate this Agreement immediately and without prior notice if you breach any provision of this Agreement, or if PPUSA determine, in PPUSA’s sole discretion, that the Site is unsuitable for the Program.

Upon termination of this Agreement, you will immediately cease use of, and remove from the Site, all links to PPUSA’s websites and all Licensed Materials (as defined below) and related content.

You are only eligible to earn Commissions on Orders occurring during the term of this Agreement, and Commissions earned through the date of termination will remain payable only if the Orders are not canceled or returned by a customer. In addition, PPUSA may invoice you for Commissions that were paid to you before termination if those Commissions relate to Qualifying Products that are subsequently canceled or returned by a customer and only during the period of cookie placement as stated in section 7 of this document. If any other overpayment is made by PPUSA, you agree to promptly remit such excess payment upon notification by PPUSA. PPUSA may withhold your final payment for a reasonable time to ensure that the correct amount is paid.

All rights or remedies arising out of a breach of any terms of this Agreement will survive any such termination of this Agreement.

10a. Inactivity

If your Affiliate account is inactive for a period of 12 consecutive months, it will be deemed “inactive”. Inactive accounts will be deleted from PPUSA’s system. As a result, any earned, unpaid commissions will be forfeited.

11. Publicity

You will not create, publish, distribute, or permit any written material (e.g., press releases, marketing material or screen shots) that makes reference to PPUSA without first submitting such material to PPUSA and receiving PPUSA’s prior written consent, which PPUSA may withheld, delayed or conditioned in PPUSA’s sole discretion.

12. Limited License and Use of the Licensed Materials

PPUSA grant you a personal, non-exclusive, non-transferable, non-sublicensable, fully revocable license, subject to the terms of this Agreement, to use PPUSA’s logos, slogans, trade names, trademarks, service marks, copyrights, and similar identifying material that are the subject of the Program (collectively, the “Licensed Materials “), only as provided to you through the Portal and solely for the purpose of generating the sale of PPUSA’s products from the Site (the “License”). You may not sublicense, assign, or transfer the License and any attempt at such sublicense, assignment, or transfer is void. PPUSA may terminate your License for any reason, at any time, in PPUSA’s sole and absolute discretion.

PPUSA reserve all its rights in the License Materials and all of PPUSA’s logos, slogans, trade names, trademarks, service marks, copyrights, and similar identifying material not subject to the License or any variations and misspellings thereof (collectively, the “Remaining Materials” and together with the License Materials, the “IP”). You acknowledge that this Agreement does not provide you with any rights in the IP other than the limited rights specified herein. You will not make any use of any IP outside the scope of the License, without first submitting a sample of such use to PPUSA and obtaining PPUSA’s prior written consent, which PPUSA may withhold in PPUSA’s sole and absolute discretion.

The License is also subject to the following terms and conditions:

  1. You may not alter, modify, or change the Licensed Materials in any way; for example, you may not change the proportion, color, or font of any trademark.
  2. You may not display the Licensed Materials in any manner that implies PPUSA’s sponsorship or endorsement of your products, services, or Site outside of your involvement in the Program.
  3. You may not use the Licensed Materials to disparage PPUSA, PPUSA’s products or services, or in a manner which, in PPUSA’s sole judgment, may diminish or otherwise damage the goodwill in PPUSA’s name and the Licensed Materials.
  4. Each of PPUSA’s trademarks subject to the License must appear by itself and must be surrounded by sufficient empty space on all sides in order to avoid unintended associations with any other objects (including but not limited to type, photography, borders and edges).
  5. You will not use the Licensed Materials as a feature or design element of any other logo or materials.
  6. Your use of the “Pacific Nature’s” or “PharmaAmerica” name or logo will be in a manner that is clearly less prominent than that of your products, trademarks, logos and Site name.
  7. You must include the following notice on any content you create that include the “PharmaAmerica” logo: “PharmaAmerica is a registered trademark of Pacific Pharmaceutical USA, Inc.”
  8. You may not copy any image on PPUSA’s websites, except for those links specifically provided to you under this Agreement.
  9. You will not purchase keywords including but not limited to “Pacific Nature’s” and “pacificnatures.com” and from any third party without PPUSA’s express prior written consent.
  10. You will not purchase keywords including but not limited to “PharmaAmerica” and “pharma-america.com” and from any third party without PPUSA’s express prior written consent.
  11. You will not purchase or otherwise contract with a third party to exploit any of PPUSA’s IP for the purpose of causing the Site to appear as a search result or for any other reason.
  12. You may not bid on the IP on any pay-per-click search engine. This includes Google, Yahoo! Marketing, MSN, and second-tier and third-tier search engines.

PPUSA reserve the right, in PPUSA’s sole discretion, to modify the terms and conditions of the License at any time upon prior written notice and the right to take action against any use that does not conform to the terms and conditions of the License.

You grant to PPUSA a non-exclusive license to utilize your names, titles, trademarks and logos as the same may be amended from time to time (the “Affiliate Trademarks”), to advertise, market, promote, and publicize in any manner PPUSA’s rights hereunder (the “Affiliate License”); provided, however, that PPUSA is not required to so advertise, market, promote, or publicize.

The Licenses and Affiliate License will terminate upon the expiration or termination of this Agreement.

13. Disclaimers

PPUSA does not make, and expressly disclaims, all express or implied warranties or representations with respect to this Agreement, the Portal, and any products promoted through the Portal (including but not limited to warranties of fitness, merchantability, non-infringement, accuracy, completeness, or any implied warranties arising out of the course of performance, dealing, or trade usage). In addition, PPUSA does not make, and expressly disclaims, any warranties and representations that the operation of PPUSA’s websites will be uninterrupted or error free, and PPUSA will not be liable for the consequences of any interruptions or errors. Access to PPUSA’s websites is provided “as is, where is” and “as available.”

PPUSA disclaims all liability for all matters relating to the development, operation, maintenance, and content on the Site.

PPUSA does not warrant or guarantee the availability or price of any particular product or that participating in the Program will result in any specified amount of Commissions.

Each party agrees and represents that this Agreement does not in any way constitute approval, endorsement, or acceptance, in any way, of the content of the other party’s webpages or Sites. Each party disclaims any and all responsibility for the content of the other party’s Sites, including but not limited to claims related to intellectual property infringement, content accuracy, defamation, and other unlawful content. Each party reserves the right to place a disclaimer on its Site or in promotional materials to reflect the disclaimers set forth herein.

14. Representations and Warranties

You hereby represent and warrant to PPUSA as follows:

  1. This Agreement has been duly authorized and accepted by you, and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms. You agree not to contest the validity or enforceability of this Agreement under the provisions of applicable law relating to whether certain agreements are to be in writing or signed by the party to be bound thereby.
  2. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby. You have full right and authority to grant the licenses and perform your obligations hereunder and you are the sole owner of your trademarks.
  3. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your Affiliate Trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
  4. Any material displayed on the Site will not: (i) infringe on any third party’s copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising; (vi) promote violence or contain hate speech; (vii) promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability; or (viii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
  5. You will comply with all applicable local, state and federal laws, statutes, orders, ordinances and regulations relating to performance of the program. You have the legal right to conduct any business conducted by you, including but not limited to any of the Sites participating in the Program. The information you supply to PPUSA in the Form or otherwise is accurate, complete and correct.
  6. You are either an adult of at least 18 years of age or an entity.
  7. You are a resident of the U.S. or have been given express approval to operate outside the U.S..

15. Relationship of Parties

You and PPUSA are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and PPUSA. You will have no authority to make or accept any offers or representations on PPUSA’s behalf. You will not make any statement, whether on the Site or otherwise, that reasonably would contradict anything in this Section.

16. Confidentiality

Except as otherwise provided in this Agreement or with PPUSA’s prior written consent, you agree that all information, including but not limited to the terms of this Agreement, PPUSA’s business and financial information, PPUSA’s customer lists, vendor lists and PPUSA’s pricing and sales information, will remain strictly confidential and will not be disclosed to any third party and will not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose, except and solely to the extent that any such information is generally known or available to the public through a source or sources other than you or your affiliates. Notwithstanding the foregoing, you may deliver a copy of any such information (a) pursuant to a subpoena issued by any court of competent jurisdiction or administrative agency, (b) to your accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process, provided you give PPUSA reasonable advance notice of such delivery and use your reasonable efforts to ensure that any such information is accorded confidential treatment by the person to whom it is delivered.

17. Limitation of Liability

PPUSA will not be liable (whether in contract or based on warranty, negligence, tort, strict liability or otherwise) for indirect, special, exemplary, consequential, or incidental damages, or any loss of revenue, profits or data, arising in connection with this Agreement, the Program or the Portal, even if PPUSA have been advised of the possibility of such damages. Further, PPUSA’s aggregate liability arising with respect to this Agreement and the Program will not exceed the total Commissions paid or payable to you under this Agreement. You recognize and acknowledge that this limitation of damages is fair and reasonable, in light of the fact that PPUSA is providing the Program to you at no charge to you.

18. Indemnification

You hereby agree to indemnify and hold harmless PPUSA, PPUSA’s affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders and members, from and against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs and expenses (including but not limited to court costs and reasonable attorney’s fees), even if such claims are groundless, fraudulent or false (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of, are based on or connected with (i) any breach or alleged breach of any representation, warranty, covenant or agreement made by you herein, including but not limited to claims for unsolicited email (spamming) or other violations of rights of privacy, (ii) any of the content (other than Content) or activities of the Site (including but not limited to any activities or aspects thereof or commerce conducted thereon) or your business, (iii) your misuse, unauthorized modification or unauthorized use of the services or materials provided by PPUSA, (iv) the development, operation or maintenance of the Site, or (v) any actual or alleged infringement by you of any intellectual property rights or other rights of any person or entity.

In PPUSA’s sole discretion, PPUSA may assume the exclusive defense and control of any matter otherwise subject to indemnification by you. PPUSA may participate in the defense of all claims as to which PPUSA do not assume defense and control, and you will not settle any such claim without PPUSA’s prior written consent.

PPUSA hereby agree to defend, indemnify and hold you and your affiliates and their respective officers, directors, employees and agents, harmless from all claims, damages, and expenses (including but not limited to attorneys’ fees and costs of litigation) relating to your use of any Content in accordance with the terms of this Agreement, and the development, operation, maintenance or content of PPUSA’s websites and its business.

19. Modification

PPUSA may modify any of the provisions of this Agreement, at any time and in PPUSA’s sole discretion, by posting a change notice or a new agreement on the Portal or otherwise communicating such change to you. Modifications may include, for example, changes in the scope of available referral fees, fee schedules, payment procedures or Program rules. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Program following PPUSA’s posting of a change notice or new agreement on the Portal will constitute binding acceptance of the change.

20. Independent Investigation

You acknowledge that you have read this Agreement and agree to all terms and conditions in this Agreement. You understand that PPUSA may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate sites that are similar to or compete with the Site. You have independently evaluated the desirability of participating in the Program and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.

21. Governing Law and Dispute Resolution

This Agreement and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of, or relate to these Terms; the negotiation, execution, or performance of these Terms (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with these Terms or as an inducement to enter into these Terms); or to any products or services sold or distributed by PPUSA or through pacificnatures.com or pharma-america.com (a “Dispute”), is governed by the laws of the State of California without giving effect to any conflict of law rules or regulations.

You irrevocably agree to the exclusive jurisdiction of the state or federal courts located in San Bernardino County, California to resolve any Disputes and you shall not to raise any objection or defense based upon inconvenience of forum or similar concerns.

YOU AND PPUSA EACH WAIVE 1) THE RIGHT TO TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT AND 2) THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.

The prevailing party in any dispute will be entitled to recover from the losing party its costs (including but not limited to reasonable costs of collection, attorneys’ fees and investigative fees).

21. Equitable Relief

Any breach of either of the party’s obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party’s obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links, or user data, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.

22. Assignment

You may not assign this Agreement, by operation of law or otherwise, without PPUSA’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.

23. Notice

Any notices required or permitted by this Agreement must be delivered to PPUSA via email or nationally-recognized overnight courier service to:

Email: affiliate@pacificpharma.com
Cc: legal@pacificpharma.com
Mail: Pacific Pharmaceuticals USA Inc.

Affiliate Program
11380 7th Street
Rancho Cucamonga, CA 91730

Any notices required or permitted by this Agreement or communications in connection with the Program will be sent to you by PPUSA via e-mail at the address you provided in the Form.

24. Severability

The provisions of this Agreement are independent of and separable from each other, and no provision will be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other provision may be invalid or unenforceable in whole or in part.

25. Waiver PPUSA’s failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of PPUSA’s right to subsequently enforce such provision or any other provision of this Agreement.

26. Force Majeure

You acknowledge that PPUSA’s servers, equipment, and services (e.g., tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond PPUSA’s reasonable control. Such temporary service interruptions will not constitute a breach of this Agreement.

27. Survival

Sections 10 (Term), 12 (Limited License and Use of the Licensed Materials), 13 (Disclaimers), 14 (Representations and Warranties), 16 (Confidentiality), 17 (Limitation of Liability), and 19 (Indemnification), including but not limited to all subsections thereof, will survive any termination of this Agreement.

28. Entire Agreement; Headings

This Agreement constitutes the entire agreement between the parties with regard to the subject matter hereof and supersedes all prior agreements and understandings, both written and oral. The headings of sections or other subdivisions of this Agreement will not affect in any way the meaning or interpretation of this Agreement.

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