Merchant Agreement

Background:

1	HealthTrader has developed software designed to track activities on the Internet, hereafter known as the “Network”. The Network enables a Merchant to setup its own affiliate programme which will encourage an Affiliate to refer visitors to the Merchant's website with the purpose of increasing the number of unique visits, leads and transactions on Merchant's website.
2	The Merchant wishes to have its own affiliate programme and wishes to use the HealthTrader Network.
3	The Merchant has been offered an Insertion Order, which constitutes an instrument of this agreement by way of definition of key values and commitments relevant to same.

IT IS AGREED as follows:

1. Definitions and Interpretation

1.1 In this Agreement the following terms shall have the following meanings:

"Action"	Means, in addition to any definition on the Insertion Order, any purchase of Merchant's goods/services by a customer; registration of a customer on a Merchant's website; or any other action completed by a customer that satisfies a purpose of the Merchant's involvement with HealthTrader.
"Affiliate(s)"	Means the affiliate marketers in the HealthTrader Network;
"Affiliate Commission"	Means the payment due from the Merchant to the Affiliate;
"Affiliate(s) Website(s)"	Means the website(s) of one or more affiliate(s);
"Agency"	Means the advertising or marketing agency that may be contracting for and on behalf of the merchant;
"Commissions"	Means the charges payable by the Merchant set out in the Commission Schedule;
"Commission Approval Time"	Means 14 days from the time of a Customer Action, within which the Merchant may decline that Action's Affiliate Commission in response to fraudulent activity.
"Commission Schedule"	Means the schedule of fees payable to HealthTrader detailed in this document and on any Insertion Order;
"Confidential Information "	Means; (i) All information of a confidential nature concerning all trade secrets or business dealings, method of business, transactions, plans or affairs of a party and its group companies or other party to whom the party owes a duty of confidence; (ii) Any document or information marked ‘Commercial in Confidence' or otherwise expressly designated as confidential; and (iii) Any information which by its nature the recipient ought reasonably to conclude was confidential information of the other party in all cases whether encrypted or not and including all copies of the above on any media (including electronic media) whatsoever;
"Disclosing Party"	Means party in respect of any confidential information the disclosing that item of confidential information;
"Direct Loss"	Means any loss characterised at law as direct loss and excludes all indirect, special or consequential loss;
"Exclusive Arrangement"	Means the Merchant has committed to an engagement with HealthTrader and its Network that precludes the listing of any similar campaign/offer with another affiliate network, online marketing or similar provision of services from any company.
"Force Majeure"	Means any cause not within the reasonable control of a party and which that party cannot reasonably prevent or overcome, as a result of which such party is unable to perform its obligations under this Agreement but shall exclude and delay or failure caused by any supplier or sub-contractor unless such supplier or sub-contractor is itself affected by an event beyond its reasonable control and which that supplier or sub-contractor cannot reasonably prevent or overcome;
"Registration Data"	Means the information provided by the Affiliate when registering for enrolment in the Programme;
"Service Package"	Means a particular set of services available from us through our website as defined in Clause 7; and
"Initial Term"	Means 12 months, starting from the effective date.
"Insertion Order"	Means the document that constitutes an instrument of this agreement, defining relevant values and commitments.
"Liability"	Means all liability including financial liability for breach of contract, negligence, breach of statutory duty and/or other tort, any liability in relation to any indemnity and any other liability howsoever arising;
"Loss"	Means claims, proceedings, actions, costs, damages, expenses (including reasonable legal fees on a solicitor client basis) and any other losses;
"Materials"	Means all materials to be provided by the Merchant under this Agreement including any and all marketing and promotion materials;
"Merchant Account"	Means the specific account held by HT on behalf of the Merchant for the payment of the Affiliate Commissions and Overrides (being understood that all the accounts of various merchants might be held by HT joined in one or more separate bank accounts);
"Merchant Corporate Identity"	Means the Merchant Trademark and trade name and corporate name as provided to HT by the Merchant;
"Merchant Website"	Means the Merchant's website;
"Network"	Means the software created by HT and comprising of the Affiliates and the Merchant;
"Change Notification Period"	Means the period of time required by HealthTrader or the Network to enact changes to the Affiliate Commission, CPA Type, CPA Rate or other attribute changeable under this agreement.
"Override"	Means the fee payable by the Merchant to HealthTrader calculated as a proportion of any Affiliate Commission at a rate agreed to by Insertion Order. The Override is separate to, but based on, the Affiliate Commission.
"Services"	Means the services provided by HealthTrader on the marketing network and on Merchant's website.
"Tracker", "Tracking"	Means the systems or mechanisms by which HealthTrader monitors, records or is notified about customer activity on the Merchant's Websites, including but not limited to server-to-server communication, cookies, or URL codes.
"Tracking Period"	Means the attempted time that each user will be tracked by the Tracking system.

2. HealthTrader Obligations

2.1	HealthTrader shall provide the services in accordance with this Agreement.
2.2	Following the request by the Merchant, HealthTrader shall use all reasonable endeavours to ensure that the materials and Merchant Corporate Identity are available for Affiliates.
2.3	The parties acknowledge and agree that HealthTrader shall make no representation or warranty as to availability of the Affiliate(s) Website(s), the amount of traffic that shall be passed to the Merchant Website, when such actions shall take place and the presentation of any materials and the Merchant Corporate Identity on the Affiliate(s) Website(s);
2.4	HealthTrader will not intentionally or negligently act in any way or make any omission which would bring the Merchant or the business of the Merchant into disrepute in any manner or otherwise damage the brand or reputation of the Merchant.

3. Merchant Obligations

3.1	Merchant shall deliver the Materials to HealthTrader at such time on reasonable notice and in such format as shall be reasonably specified by HealthTrader during the course of this Agreement.
3.2	If the Merchant has not entered into an Exclusive Arrangement as asserted by Insertion Order then the Affiliate Commission levels set on the Network shall be greater than or equal to the value of commission or payment from leads, conversions or Actions from any other affiliate network, direct commission to any affiliate, or any other means of provision of Conversion services in direct or indirect competition with the Network or HealthTrader.
3.3	Affiliate Commission levels are established on the Insertion Order and are only modifiable by the Network. The Merchant may apply for a reduction of the Affiliate Commission levels or the length of the Tracking Period, and if approved, the Network shall require the Change Notification Period to enact such a request. Only one such request per offer may be active at any time. In this way the scheduled reduction of Affiliate Commission levels is precluded within periods of less than the Change Notification Period.
3.4	The Merchant shall not restrict bidding on keywords without giving the Affiliates and HealthTrader notice of a time equal to the Change Notification Period.
3.5	The Merchant shall pay Invoices as and when they fall due.
3.6	The Merchant shall for the term of this agreement put up and maintain Tracking mechanisms supplied by HealthTrader onto the sale confirmation page of the merchant's website so that each valid sale is recorded and published to HealthTrader. If the Merchant is not capable of integrating the required Tracking systems (pixel tracking, server-to-server, or any other Tracking system provided on the Network) the Merchant shall obtain technical services at its own expense to fulfil this obligation to the satisfaction of HealthTrader. Failure to correctly integrate Tracking constitutes a material breach. The Merchant shall reasonably endeavour to track each Action for an amount of time equal to the Tracking Period.
3.7	The Merchant covenants not to promote another affiliate marketing network in respect of services to affiliates introduced to the Merchant by the HealthTrader Network for the duration of this agreement and for six (6) months following the termination of this agreement.
3.8	The Merchant may request an increase of the Affiliate Commission levels at any time, and if approved HealthTrader may implement such a change without delay or at a time agreed between the Merchant and HealthTrader.

4. Tax/VAT

All commissions are exclusive of any value added or similar tax which shall be charged in addition. Should the merchant be obliged to withhold or deduct any portion of the commission then HealthTrader shall be entitled to receive from the merchant such amounts as will ensure that the net receipt, after tax, to HealthTrader in respect of the commission is the same as it would have been were payment not subject to tax.

5. Intellectual Property Rights

5.1	All intellectual property rights in the HealthTrader link, the HealthTrader website and the HealthTrader trade name and domain name belong and shall belong to HealthTrader. All intellectual property rights in the merchant link, the merchant website and the merchant trade mark, trade name and domain name belong and shall belong to the merchant. All intellectual property rights in the affiliate(s) trade mark, trade name and domain name belong to the affiliates.
5.2	In order to provide the services, the Merchant hereby grants HealthTrader a non-exclusive, worldwide, royalty free licence for the duration of this agreement to use the merchant corporate identity and the materials, including the right to post the merchant corporate identity or material on to HealthTrader's website. This licence shall not be assignable, transferable or sub-licensable.
5.3	In order to provide the services, the Merchant hereby grants to each Affiliate a non-exclusive, worldwide, royalty free licence for the duration of this agreement to use the merchant corporate identity and the materials, including the right to post the merchant corporate identity or material on to the affiliates website. This licence shall not be assignable, transferable or sub-licensable.
5.4	The ownership of all affiliate data collected by HealthTrader in accordance with this agreement shall vest in HealthTrader.
5.5	The ownership of all customer data collected by the Affiliate or Merchant shall vest in the merchant.
5.6	Other than the licence expressly granted in clauses 5.2 and 5.3, this agreement does not grant any license of, right in or make any assignment of any assignment of any intellectual property rights.

6. Indemnity

6.1

The Merchant shall indemnify and hold harmless HealthTrader and its officers, employees, directors, shareholders, representatives, successors, and assigns against any and all loss arising from or connected with: 6.1.1 Any infringement of any intellectual property rights of any third party anywhere in the world caused by or resulting from the use by HealthTrader of the merchant corporate identity and/or materials in accordance with this agreement; 6.1.2 The Merchant's proven negligence, default or breach of this agreement; 6.1.3 Any claims by an affiliate arising from non-payment of the affiliate commission; 6.1.4 Any marketing or promotional activities undertaken by the merchant on the merchant website(s);

6.2

HealthTrader shall indemnify and hold harmless the Merchant and its officers, employees, directors, shareholders, representatives, successors, and assigns against any and all loss arising from or connected with HealthTrader's proven negligence, default or breach of this agreement. However, HealthTrader shall not be liable for any indirect, consequential or incidental damages, such as, but not limited to, loss of profits, opportunity, revenue or potential saving.

7. Warranties

7.1	The Merchant warrants and represents that; 7.1.1 This agreement is executed by a duly authorised representative of, and represents a binding commitment on, the merchant; 7.1.2 It has full capacity and authority and all necessary licenses, permits and consents to enter into and perform this agreement; 7.1.3 It will comply with all applicable laws, enactments, orders, regulations and other similar instruments in relation to its obligations under this agreement; 7.1.4 The use and possession of the merchant corporate identity and the materials by HealthTrader or an affiliate in accordance with this agreement will not infringe intellectual property rights of any third party anywhere in the world; and 7.1.5 The content on, or available through the merchant website or in materials shall not be libellous, defamatory, obscene, racist, sexually harassing or pornographic and shall not violate civil or criminal laws, including those regulating the use and distribution of content on the internet or in the industry of the merchant.
7.2	HealthTrader warrants and represents that; 7.2.1 This agreement is executed by a duly authorised representative of and represents a binding commitment on HealthTrader; 7.2.2 It has full capacity and authority and all necessary licenses, permits and consents to enter into and perform this agreement; 7.2.3 It will comply with all applicable laws, enactments, orders, regulations and other similar instruments in relation to its obligations under this agreement; 7.2.4 Even though HealthTrader has no direct control over affiliate website(s), HealthTrader will endeavour to ensure that the content on, or available through the affiliate website(s) or in materials shall not be libellous, defamatory, obscene, racist, sexually harassing or pornographic and shall not violate civil or criminal laws, including those regulating the use and distribution of content on the internet.
7.3	Except for the express provision of this agreement and to the maximum extent permitted by applicable law each party disclaims and excludes all warranties, terms or other conditions, including but not limited to the services or an affiliate website being uninterrupted or error free, any warranty, term or other condition of merchantability, satisfactory quality, fitness for a particular purpose or non-infringement, in every case whether implied by statute, common law, custom, collaterally or otherwise.
7.4	HealthTrader reserves the right to remove any and all of the materials from HealthTrader website and or affiliate website and the HealthTrader link from affiliate website at any time during the course of this agreement.
7.5	Notwithstanding the above provisions, the parties acknowledge and agree that there is no obligation on HealthTrader to monitor the materials or the merchant corporate identity or merchant website or any other deliverable provided by the merchant under this agreement.

8. Liability

8.1

Neither party limits liability for death or personal injury caused by its negligence.

8.2

Subject to clauses 8.1 and 13.3 and with the exception of liability under clauses 6, 7 and 9: 8.2.1 Neither party shall have any liability: (a) For any loss or damage other than direct loss; (b) For any loss of profit, opportunity, revenue or potential saving (in every case whether direct or indirect) provided that this clause shall not limit the merchant's obligation to pay commissions; (c) For any breach of this agreement to the extent caused or contributed to by the other party's breach of this agreement or the other party's negligence.

9. Confidentiality

9.1	Each party shall keep any confidential information received from or belonging to the other party secret and not disclose such confidential information to anyone (except on a need to know basis for internal use only where necessary to perform its obligations under this agreement to its employees or full time contractors bound by express written secrecy obligations) or use such confidential information other than to perform its obligations under this agreement without the prior written consent of the relevant disclosing party.
9.2	Clause 9.1 shall not apply to any confidential information when: 9.2.1 Disclosure is required to or by any court, tribunal, governmental authority with competent jurisdiction; 9.2.2 It is or becomes generally and freely publicly available through no fault of the recipient or its servants or agents; or 9.2.3 It can be shown to have been independently originated by the relevant recipient or communicated to it in circumstances other than where its disclosure to that recipient imparted a duty of confidence.
9.3	The obligations contained in this clause 9 shall continue in force for twelve (12) months after the termination of this agreement.

10. Termination

10.1	Either party (Terminating Party) may terminate this agreement immediately upon written notice: 10.1.1 If the other commits any material breach of its obligations under this agreement which is not capable of remedy or is capable but is not remedied within 30 days of the terminating party giving notice in writing specifying the breach and requiring remedy within such 30-day period; 10.1.2 If the other becomes unable to pay its debts as they fall due, enters into liquidation whether compulsorily or voluntarily (otherwise than for the purpose of amalgamation or reconstruction where the emerging company assumes the obligations of the party entering into liquidation), compounds with its or has an administrator, administrative receiver, receiver or other encumbrance appointed of all or any part of its assets or undertaking ceases to conduct business in the normal manner, threatens or resolves to do any of the above or takes or suffers any similar action in consequence of debt;
10.2	Upon expiry or termination of the agreement: 10.2.1 Neither party shall have any liability: 10.2.2 Each party shall within thirty (30) days of such expiry or termination return (or at the other's option destroy) all confidential information of the other and all copies of such information.
10.3	Termination of this agreement howsoever arising or caused: 10.3.1 Shall be without prejudice to the rights of either party which have accrued up to the date of termination; and 10.3.2 Shall not operate to affect any provisions that expressly or impliedly survive such termination.
10.4	HealthTrader may terminate this agreement at any time with 48 hours written notice.

11. Force Majeure

11.1	Neither party shall be liable for any delay or failure to carry out its obligations under this agreement caused by force majeure provided that it promptly gives written notice of the occurrence of the force majeure relied on to the other party and it uses all reasonable endeavours to remove or avoid such force majeure as promptly as practicable.
11.2	If any force majeure event is relied on for longer than 60 days by either party, the other shall be entitled to terminate this agreement forthwith on written notice.

12. Subcontracting

12.1	HealthTrader may subcontract its obligations under this agreement provided that it remains primarily liable to the merchant for performance of this agreement and is fully liable for the acts of such subcontractors as if they were its employees acting within the scope of their authority.

13. Entire Agreement

13.1	Every Insertion Order is subject to this agreement and together they set out the entire agreement and understanding between the parties and supersedes any previous agreement between the parties relating to its subject matter. Unless otherwise expressly agreed in writing this agreement applies in place of and prevails over any terms or conditions contained in or referred to in correspondence or elsewhere or implied by trade custom or course of dealing.
13.2	In entering into this agreement each party acknowledges and agrees that it has not relied on any representations made by the other. Any such representations are excluded.
13.3	Nothing in this agreement shall limit liability for any representations made fraudulently.

14. Variation

Any variation of this agreement shall only be effective if in writing under the hand of an officer or other duly authorised representative of each of the parties.

15. Severance

If any provision of this agreement is determined to be illegal or unenforceable by any court of competent jurisdiction, it shall be deemed to have been deleted without affecting the remaining provisions.

16. No Partnership or Agency

16.1	Unless expressly provided to the contrary in this agreement: 16.1.1 Nothing in this agreement shall constitute or be deemed to constitute a partnership, joint venture or agency between the parties; and 16.1.2 Neither party shall have any authority or power to bind, contract in the name of or create a liability for or against the other.

17. Assignment

17.1	Neither party shall sub-licence, assign, transfer or charge this agreement or any of its rights under it, or in the case of HealthTrader, subcontract any of its obligations other than in accordance with clause 12 or purport to do any of the acts described in this clause 17.1 without prior written consent of the other, which may be refused at the other's absolute discretion.
17.2	This agreement shall endure for the benefit of the merchant's ultimate holding company and each of its other subsidiary companies from time to time.

18. Counterparts

This agreement may be executed in any number of counterparts, each of which shall, when executed and delivered, be an original and all counterparts shall together constitute one and the same instrument. It is not effective until all parties have executed a counterpart.

19. Third Party Rights

Subject to clause 17.2, no provision of this agreement shall be enforceable by any other third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise.

20. No Waiver

20.1	No failure or delay by a party in exercising its rights or remedies shall operate as a waiver unless made by written notice.
20.2	No single or partial exercise of any right or remedy of a party shall preclude any other or further exercise of that or any other right or remedy.

21. Law and Jurisdiction

This agreement shall be governed and construed in accordance with the laws of England. The parties irrevocably submit to the exclusive jurisdiction of the courts of England in respect of any matter, claim or dispute arising under, out of or in connection with this agreement (including as to its validity) or the legal relationships established by this agreement.

22. Payment

22.1	Affiliate Commissions are set by the Merchant in the Network software. Overrides are paid in addition to Affiliate Commissions in association with a customer Action and upon Merchant approval of same. Overrides are paid from the Merchant Account.
22.2	The Merchant hereby authorises HealthTrader to distribute the Affiliate Commissions to the Affiliates on its behalf, and the related Overrides to HealthTrader. The Merchant shall maintain a minimum Merchant Account Balance as defined in the Insertion Order. In the event of a low (less than Minimum) Merchant Account Balance, HealthTrader reserves the right to restrict access to the Network by the Merchant. A zero or negative Merchant Account Balance shall constitute a material breach.
22.3	Invoices shall be paid by the Merchant to HealthTrader within seven (7) days of issue. Payments are deemed to have been received only on receipt by HealthTrader of cleared funds. Failure by the Merchant to make timely payment shall constitute a material breach. The Merchant is responsible for all reasonable expenses (including, but not limited to, attorney's fees and costs) incurred by HealthTrader in collecting such amounts due plus interest.
22.4	In the event of late payment, the Merchant shall be liable to pay interest on the amount of the late payment from the due date to the date of receipt by HealthTrader at the annual rate of the lower of 8% above the base rate of the Bank of England from time to time and the maximum rate permitted by applicable law. Such interest shall accrue on a daily basis both before and after any judgement.
22.5	Claims or Disputes. The Merchant shall submit any and all claims and disputes in writing to HealthTrader within seven (7) days after the invoice date, time being of the essence. Claims and disputes not timely submitted to HealthTrader, in accordance with this provision, are waived and all charges are final.
22.6	Refund Policy. All refunds if any are at the sole and absolute discretion of HealthTrader. Any funds remaining as Merchant Account Balance will be refunded to the Merchant within 90 days of the termination of this agreement.

23. Exclusivity

23.1

If the Insertion Order affirms it is an ‘Exclusive Arrangement', then HealthTrader shall be the exclusive online distribution source for the campaign/offer, and the Merchant shall not duplicate the same or similar offer for any other affiliate, publisher, or network without HealthTrader's prior written consent.

23.2

In the event of a breach of the above provision (clause 23.1) by the Merchant, HealthTrader shall be entitled to, in addition to all other rights and remedies that HealthTrader may have at law or in equity, an injunction (without the requirement to post a bond) enjoining and restraining the Merchant and/or all other persons involved therewith from continuing such breach for each applicable "Exclusive" offer. The Merchant acknowledges that any breach by the Merchant of this provision will result in irreparable injury to HealthTrader for which money damages may not adequately compensate HealthTrader.

24. Non-Circumvention

24.1	The Merchant recognizes that HealthTrader has proprietary relationships with Affiliates. The Merchant agrees not to knowingly circumvent HealthTrader's relationships with such Affiliates, or otherwise obtain, directly or indirectly, services similar to those performed by HealthTrader or such Affiliates hereunder, from any Affiliate that is known, or should reasonably be known, by the Merchant to have such a relationship with HealthTrader. The Merchant shall not solicit the Affiliates of HealthTrader, nor shall the Merchant use or attempt to use reverse engineering or tracing of Affiliate traffic as a means to solicit and/or identify HealthTrader's Affiliates.
24.2	For the term of the Agreement and for a period of 6 months from the date that the last order was generated, the Merchant shall not knowingly solicit or work directly in any way with HealthTrader Affiliates without express permission by HealthTrader in writing. Failure to comply with this Section may, at our discretion and without limiting or excluding other remedies that may be available to HealthTrader (all such other remedies being expressly reserved), result in immediate termination of the Agreement.
24.3	The Merchant acknowledges they are responsible for the approval or declination of all Affiliate Commissions within the agreed Commission Approval Time. The Merchant acknowledges and agrees that HealthTrader shall not be liable for any instances of fraud on the part of end-user consumers or affiliates and the Merchant agrees to pay HealthTrader in full for all services performed under this Agreement regardless of end-user consumer or affiliate fraud.
24.4	The Merchant agrees to not alter or remove any tracking method deployed in pursuance of this agreement ("Tracking") to track leads. If Merchant disrupts, interferes, or disables the tracking system during the course of this agreement, the Merchant will be obligated to pay HealthTrader for all Actions, based upon the historical earnings per click ("EPC"), to have been generated during the period of disruption. The historical EPC is determined by dividing the total earnings by the number of clicks generated by a campaign during the most recent uninterrupted traffic period.

25. Alterations

HealthTrader may change this agreement at any time (i) upon notice via an update to the HealthTrader Merchant Agreement on the HealthTrader website or (ii) by email notification to the Merchant.