Independent Sales Representative Agreement
Last Updated on February 10, 2020
1. PARTIES. All references to "WhatsUpDoc" and "we" mean and refer to What's Up Doc Ltd, doing business as WhatsUpDocConnect. All references to "you" and "your" mean and refer to the person or entity who has executed this Agreement by clicking "I Accept the Terms and Conditions" and "Submit". WhatsUpDoc and you are each referred to herein as a "Party" and collectively as the "Parties."
2. APPLICATION. To register for the ISR Program, you must complete and submit the ISR Application ("Application"). You agree to provide all the information requested by WhatsUpDoc in connection with your Application, and you affirm that all the information that you provide is truthful and accurate. An Application will be rejected if it is incomplete. You understand and agree that WhatsUpDoc retains sole and absolute discretion to determine whether you qualify for participation in the WhatsUpDoc ISR program. Not everyone who applies for the WhatsUpDoc ISR program will qualify to participate. You will have no legal recourse against WhatsUpDoc for the rejection of your Application. You must be 18 years old, or older, to submit an Application.
3. CONSENT TO BE CONTACTED. You expressly consent to WhatsUpDoc contacting you at the email address and the phone number you provide in your Application, including through automated dialing systems, texts and artificial or pre-recorded messages. This consent is a material condition of this Agreement and may not be revoked except in writing by both Parties.
4. STANDARD ISR PROGRAM. If your Application to become an ISR is approved by WhatsUpDoc, you will receive a unique alphanumeric code also referred to as (redemption code) that you may use to promote WhatsUpDocConnect.com. You will have the opportunity to receive a commission for each Sale you make as an ISR. Commissions are generated when a prospect becomes a paying member of WhatsUpDoc using your unique assigned redemption code (the "Sale"), and when that paying member makes his/her monthly payments.
The ISR Program does not use affiliate cookies or affiliate links. You will only be paid a commission for each monthly membership payment by members who use your assigned redemption code. It is the ISR's responsibility to ensure that his/her ISR redemption code is placed within his/her promotional material correctly and is properly communicated to potential members.
ISRs must maintain active status by making at least three Sales in any given three month period (a minimum of three new paying members per quarter). In the event that active status is not maintained, you will continue to receive commissions payments, calculated at the lowest commission rate, for a period of one year from your last month of activity. After one year of inactivity, your commissions will no longer be paid and will be forfeited.
You must provide WhatsUpDoc your complete W-9 tax information before you will be paid commissions. Only residents of the United States can earn commissions. You are solely responsible for complying with all tax and other governmental laws in your jurisdiction including, but not limited to, the filing of all tax returns and other required documents and the payment of all required taxes of any nature, including income and other taxes due on commissions paid by WhatsUpDoc under this Agreement.
ISRs will not be paid commissions for payments made on their own membership accounts. ISRs are not permitted to become members of WhatsUpDoc under the name of another person or entity, under a fictitious name, or under any name merely for the purpose of obtaining commissions or any other compensation, or to gain Super ISR status. ISRs are not permitted to gain Super ISR status by having any affiliates, affiliated or related entities or people become members solely for the purpose of the ISR gaining Super ISR status. ISRs are not permitted to offer cash rebates or other monetary incentives to obtain Sales.
WhatsUpDoc reserves the right to change the ISR Commissions payment structure at any time. You will be notified in advance if this happens; the changes are never retroactive.
5. COMPENSATION. Commission rates are based on the number of Sales made each calendar month by the ISR. The established commission rates are described in Appendix B ("Commission Amounts").
All commission payments are based on actual collected membership payments (less any applicable taxes), but not on any member registration fees. For example: we may offer a new member the promotion of a free month with a one-time registration fee. No commission will be paid for the free month, as no monthly payment has been made.
Commissions are paid after a one month holding period, to ensure that any chargebacks or refund payments can be deducted from the commissions. Payments shall be made on the 15th of each month. In the event the 15th of the month falls on a holiday, payments shall be made on the next business day.
For example: In January, you earn a commission for each monthly membership payment by members who joined using your code. The commission rate (percentage) is determined by the number of Sales (new members who made their first monthly payment) as of the last day of that month (January). That earned commission is held until the end of the next month (February), to allow for any chargebacks or refunds. You will receive your commissions payment the 15th of the month following the hold (March 15th).
In order to maximize commissions payments, we will compare your Sales in any given month (i.e., January) to your average Sales per month over a 3-month lookback period (November, December and January). Your commission rate for January will be based on the higher of those two numbers. The lookback average will not be used to lower your commissions. An example of how commissions are calculated appears in Appendix B.
All approved, non-refunded commissions are paid out once per month, with a minimum payment threshold of $50.00. Amounts below $50.00 will accrue in your account and payment will be made in the month in which your total commissions payment achieves the minimum $50.00.
Commissions are only paid for transactions that actually occur between WhatsUpDoc and a paying member, in which payment is received by WhatsUpDoc. If payment for a membership later results in a refund or chargeback and you had already received a commission payment for that Sale, then that commission will be deducted from future commissions. If WhatsUpDoc determines, in its sole and absolute discretion, that any Sale was procured fraudulently or as a result of any violation of this Agreement or applicable law, no commission will be paid for such and, for past Sales, such payment amounts shall be deducted from your future commissions, and WhatsUpDoc may terminate this Agreement immediately without having any liability to you.
Commissions payments will be made via PayPal. ISRs can create a free PayPal account and must enter their correct payment address in their application form and dashboard to be eligible for payments.
For each Standard ISR that signs up with your code, meets the ISR requirements set forth in this Agreement, and receives commissions, you shall receive, in addition to your Standard ISR commission, an additional commission based on the Sales made by the ISR who signed up using your code (the "Super ISR Commission"), as set forth in Appendix B. You shall receive the Super ISR Commission whether you are an active ISR or not. However, once the Standard ISR on whom your Super ISR Commissions are based no longer receives commissions due to inactivity (is no longer making Sales), you shall no longer receive commissions based on his/her Sales. You shall not receive Super ISR Commissions based solely on the one year extended commissions payments made to inactive ISRs.
8. INDEPENDENT CONTRACTOR. You understand and agree that ISRs are independent contractors of WhatsUpDoc. This Agreement creates a contractual relationship between the Parties, but it is the express understanding and intention of the Parties that nothing contained in this Agreement shall be construed or applied to create the relationship of employer and employee, principal and agent, or master and servant as between you and WhatsUpDoc. You have no right, and are not authorized, to bind WhatsUpDoc, to act or appear to act as an agent or representative of WhatsUpDoc, whether in the performance of this Agreement or otherwise, or to share in WhatsUpDoc's profits or losses. The only compensation available to you is set forth in this Agreement. You will not be entitled to workers compensation, retirement, insurance or other benefits which may be afforded to employees of WhatsUpDoc. It is understood and agreed that WhatsUpDoc shall not withhold any monies from ISR commissions for income, self-employment, payroll or any other taxes, and the ISR is solely responsible for the payment of all taxes owing from commissions paid by WhatsUpDoc.
You are solely and exclusively responsible and liable for all of your acts, obligations and omissions. This Agreement does NOT give WhatsUpDoc any authority or control over your performance of work or the means by which the work is to be accomplished. You shall have complete and authoritative control as to the details of performing the work which is the Object of this Agreement. It is agreed that the ISR shall bear all costs and expenses attendant to ISR's Sales efforts without reimbursement from WhatsUpDoc, unless the parties shall otherwise mutually agree from time to time. Nothing in this Agreement shall be construed or interpreted to create a partnership or joint venture between you and WhatsUpDoc.
Nothing in this Agreement grants or authorizes either Party to assume or to create any obligation, contract or liability, express or implied, on behalf of, or in the name of, the other.
9. RESPONSIBILITIES. You are responsible for all matters pertaining to your performance under this Agreement. You are solely responsible for all items that appear on your advertising, social media and/or website and for assuring that such items do not infringe upon or violate the rights of any other party. WhatsUpDoc is not responsible for any matter pertaining to your advertising, social media, website or the content thereof. You agree to hold us harmless and indemnify us from any and all claims, suits, threats, demands, liabilities, actions, and causes of action related in any way to your performance as an ISR or the means by which your Sales are achieved. Such indemnity includes our costs and attorney fees in defending any such matter.
10. REPRESENTATIONS AND WARRANTIES. You hereby represent and warrant to WhatsUpDoc that: a) you have the complete power and authority to enter into this Agreement and that this Agreement constitutes a valid and legally enforceable agreement; b) if the ISR is an entity, its entry into this Agreement has been duly and validly authorized by all necessary corporate or other organizational actions and approvals; and c) your entry into this Agreement is not prohibited by the terms of any document, is not contrary to any law, rule or regulation, and is not in violation of any court, tribunal or administrative order.
You hereby represent and warrant to us that you will not make any representations or warranties with regards to the telemedicine services accessed through WhatsUpDoc or the earning potentials of its ISRs.
You hereby represent and warrant to us that your advertising, social media, website and its contents do not and will not contain any materials that are illegal or contrary to this Agreement, and that your website is not operated for an illegal purpose or in an illegal manner.
11. ADDITIONAL REPRESENTATIONS AND WARRANTIES. You hereby represent and warrant that there are no prior or pending government investigations or inquiries of, or prosecutions against, you by the Federal Trade Commission ("FTC"), any other federal or state governmental agency, or any industry regulatory authority anywhere in the world, or any prior or pending private lawsuits against you which relate to alleged intentional torts or alleged violation of any consumer protection or advertising laws. If you become the subject of such an investigation, inquiry, prosecution, or lawsuit any time after this Agreement is executed, you are required to notify WhatsUpDoc of the same within 24 hours. WhatsUpDoc, in its sole and absolute discretion, may immediately terminate your participation in WhatsUpDoc's ISR program, as well as immediately terminate this Agreement, based on any investigation, proceeding, or lawsuit identified pursuant to this paragraph, or your failure to disclose same.
12. NO WARRANTY; NO LEADS. WhatsUpDoc does not promise, guarantee or warrant your business success, income, or sales. You understand and acknowledge that WhatsUpDoc will not at any time provide sales leads or referrals to you. You understand and agree that this is not a business opportunity, a franchise opportunity, a "business-in-a-box," or an assisted marketing plan. You are responsible for procuring and paying for any and all materials, costs incurred, and resources necessary to operate as an ISR as you determine in your sole discretion.
13. LIABILITIES. WHATSUPDOC SHALL NOT BE RESPONSIBLE FOR AND HEREBY DISCLAIMS ANY AND ALL WARRANTIES RELATED TO WHATSUPDOCCONNECT.COM, THE ISR PROGRAM, YOUR PARTICIPATION IN THE ISR PROGRAM, AND YOUR ABILITY TO MAKE ANY COMMISSIONS OR OTHERWISE PROFIT THROUGH PARTICIPATION IN THIS ISR PROGRAM, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR MERCHANTABILITY, NON-INFRINGEMENT, OR ANY CLAIM MADE BASED UPON OUR COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT REPRESENT OR WARRANT THAT WHATSUPDOCCONNECT.COM OR ANY APPLICATION WILL BE ERROR-FREE OR THAT THEY WILL FUNCTION WITHOUT INTERRUPTION.
14. CONFIDENTIALITY. In the event that any information is disclosed to you through your participation in the ISR Program which is related in any way to WhatsUpDoc, which we deem to be confidential and proprietary, you agree to hold such information in the strictest of confidence and not to disclose such information to any other party or to use any such information for your own purposes or benefits. Confidential information will include any information regarding any changes or modifications to this Agreement or this ISR Program, including commissions and any other compensation you may receive. Confidential information shall also include any and all information related to WhatsUpDoc's business, such as business plans, marketing plans, user statistics, financial information, pricing, profits, membership information, affiliations, Sales information, intellectual property, trade secrets and all other information which WhatsUpDoc considers to be, or which one may reasonably consider to be, confidential and proprietary.
The term of this obligation of confidentiality shall be in force during the term of this Agreement and shall survive the termination of this Agreement for whatever reason, for a period of two (2) years from the Termination Date.
15. LIMITATION OF LIABILITY. YOU AGREE THAT IN NO EVENT SHALL WHATSUPDOC OR ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, OWNERS, PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, AGENTS AND LICENSORS, CONTRACTORS, CONSULTANTS, SUCCESSORS AND ASSIGNS HAVE LIABILITY TO YOU FOR ANY CLAIM OF ANY KIND OR DESCRIPTION FOR AN AMOUNT IN EXCESS OF THE AMOUNT OF THE COMMISSIONS PAYMENTS PAID TO YOU FOR THE MONTH PRECEDING THE DATE IN WHICH THE FACTS UNDERLYING YOUR COMPLAINT OCCURRED, OR TWO THOUSAND DOLLARS ($2,000.00), WHICHEVER IS GREATER. YOU WAIVE ANY AND ALL RIGHT TO ANY DIRECT OR INDIRECT, FORESEEABLE OR UNFORESEEABLE, DAMAGES, LOSSES, INJURIES, PREJUDICES OR LIABILITIES OF ANY NATURE OR THEORY, INCLUDING, BUT NOT LIMITED TO, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES, AS WELL AS DAMAGES FOR LOST PROFITS, LOST BUSINESS OPPORTUNITY, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATED TO YOUR PERFORMANCE UNDER THIS AGREEMENT OR SERVICES, WHETHER BASED ON CONTRACT, TORT, WARRANTY, STATUTE OR OTHERWISE, OR ANY OTHER DAMAGES, REGARDLESS OF WHETHER WHATSUPDOC WAS OR HAD BEEN ADVISED OF THE POSSIBILITY OF DAMAGES OR SUCH CLAIMS AND TOOK NO ACTION TO PREVENT SAME.
16. DISPUTE RESOLUTION BY MANDATORY BINDING ARBITRATION, CLASS ACTION WAIVER, & GOVERNING LAW.
You and WhatsUpDoc agree that any dispute arising out of or related to this Agreement and your performance is personal to you and WhatsUpDoc and that any dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding.
17. INDEMNIFICATION. You agree to protect, defend, indemnify and hold harmless WhatsUpDoc, its officers, directors, shareholders, employees, owners, parent companies, subsidiaries, affiliates, agents and licensors, contractors, consultants, successors and assigns from and against all claims, liabilities, damages, actions, suits, threats, demands, settlements and causes of action of every kind and character without limitation, including all costs and attorney fees related thereto that WhatsUpDoc may incur and which are based in whole or in part upon the your participation in the ISR Program, your breach of any term, covenants, condition, representation or warranty contained in this Agreement or any policies or procedures of participation in the ISR Program, or any Claim related directly or indirectly to, or arising out of, your conduct, acts, or omissions related to your Application and/or performance of this Agreement including, but not limited to, any breach of this Agreement. Your indemnity obligation includes, but is not limited to, any third party claim against WhatsUpDoc for liability or payments for damages caused by, or other liability relating to, you. This provision expressly survives the termination of this Agreement.
19. TERM AND TERMINATION. If approved, your participation in the WhatsUpDoc ISR program will continue month-to-month until either:
- WhatsUpDoc cancels this Agreement due to your breach of any of the terms of this Agreement. In this event, WhatsUpDoc will immediately terminate your ISR account and will immediately cease and discontinue all commissions and any other payments owed to you or that may in the future be owed to you without any further liability by WhatsUpDoc to you. Upon receiving notice of the cancellation due to breach, the ISR will immediately cease any and all Sales activity; will cease identifying himself as an ISR of WhatsUpDoc and will cease performing under the Agreement;
- WhatsUpDoc, in its sole and absolute discretion, cancels or fails to renew this Agreement. In this event, you will first receive 30 days written notice of Termination, sent to the email address associated with your ISR profile. On the 31st day after the date of the notice, WhatsUpDoc will terminate your ISR account and will cease all commissions and any other payments owed to you or that may in the future be owed to you without any further liability by WhatsUpDoc to you. Prior to or on the 31st day after the date of the notice, the ISR will cease any and all Sales activity; will cease identifying himself as an ISR of WhatsUpDoc and will cease performing under the Agreement; or
- You provide WhatsUpDoc 30 days written notice that you wish to cancel this Agreement. In this event, on the 31st day after the date of the notice, WhatsUpDoc will terminate your ISR account and will cease and discontinue all commissions and any other payments owed to you or that may in the future be owed to you without any further liability by WhatsUpDoc to you. On the 31st day after the date of the notice, the ISR will cease any and all Sales activity; will cease identifying himself as an ISR of WhatsUpDoc and will cease performing under the Agreement.
20. TERMINATION. You will forfeit all right to receive past commissions that may have accrued to you if this Agreement is terminated as a result of your failure to comply with or breach the terms of this Agreement or any policies and procedures of the ISR Program that may be established and amended by us from time to time. If this Agreement is terminated for any other reason, you will have a right to receive your accrued commissions through the effective date of termination, 30 days after the notice date. We reserve the right to withhold final commission payments for a sufficient amount of time in order to assure that the amount paid to you is accurate and not subject to later adjustment for returns or any other reasons. If, following final payment, we determine that the amount of commissions paid was too high as a result of subsequent returns or any other adjustment or reason, the differential shall be a debt from you to us and we shall have all legal right to receive a refund of such overpaid commissions from you.
21. NO ASSIGNMENT. You shall not assign this Agreement or any of the rights or obligations under this Agreement without the prior written approval of WhatsUpDoc. Subject to the foregoing, this Agreement and the covenants, obligations, undertakings, rights and benefits set forth herein shall be binding on and inure to the benefit of the Parties and their respective successors and assigns.
24. NOTICES. Notices sent by email sent hereunder shall be via email to you at the email address indicated in your Application. Any and all notices to you via email at such address shall be deemed to be effective notice to you for all purposes.
UPDATED January 21, 2020
ADDITIONAL TERMS OF THE ISR AGREEMENT AND ADVERTISING RULESThese Advertising Rules apply to all activities of ISRs
A1. GENERAL COMPLIANCE. To the extent that ISR publishes or otherwise distributes advertisements or other communications, ISR shall publish or otherwise distribute advertisements and other communications in strict compliance with all applicable laws and regulations, including without limitation, laws prohibiting deceptive and misleading advertising and marketing, email marketing laws (including the Federal CAN-SPAM Act (15 U.S.C. § 7701)), laws governing testimonials (including the FTC's Revised Endorsements and Testimonials Guides (16 CFR Part 255 of the Code of Federal Regulations)), and all guidelines issued by the FTC. ISR is solely responsible for ensuring ISR's compliance with all laws. ISR is strictly prohibited from making claims concerning the products and services offered by WhatsUpDoc that are inconsistent with, or beyond the scope of, marketing materials produced and made available by WhatsUpDoc. ISR is prohibited from publishing or otherwise distributing advertisements by telemarketing, fax, or text messaging in any form to any device. The ISR shall not offer monetary incentives, such as rewards points, cash, or prizes to prospects in return for their response to an advertisement. WhatsUpDoc retains the sole and absolute discretion to determine whether ISR advertising and conduct is in compliance with all laws and regulations.
A2. DISCLOSURE. On any website on which ISR advertises any WhatsUpDoc service or product, the ISR must plainly display (i.e., not in a link, or in small font) the following language:
Disclosure: I am an Independent Sales Representative, not an employee of WhatsUpDoc. I receive referral payments in the form of commissions from WhatsUpDoc. The opinions expressed here are my own and are not official statements of WhatsUpDoc.
A3. NON-DISPARAGEMENT. ISR is not permitted to comment negatively about or disparage the products or services of WhatsUpDoc or any other person or entity, including without limitation the products or services of a WhatsUpDoc competitor. ISR is not permitted to engage in any unlawful or deceptive actions with respect to search engine optimization, including, but not limited to, using any technique that generates paid search results based on any service marks, brand names, trademarks, ™ Marks, or the words WhatsUpDocConnect, any brand name of WhatsUpDoc, or based on the trademarks or brand name of any competitor of WhatsUpDoc or any other third party. ISR shall not direct link to a WhatsUpDoc sales page from any paid advertising.
A4. SOCIAL MEDIA. If ISR advertises on Instagram or YouTube, then each post must comply with the following:
- Each post must contain #ad in a clear and conspicuous location before the text of the description and in all events before the "More" button; and
- Each YouTube post must contain the word "Ad," "Advertisement," "Promotion," within the video itself in a font size that is clearly recognizable to the viewer and which appears persistently throughout the length of the video in the top right hand portion of the video.
If ISR is advertising on other forms of written social media (e.g., Facebook, Twitter), ISR must comply with the above disclosure restrictions as applicable to each form of social media. ISR must also comply with all rules of each social media platform that ISR uses.
A5. INCOME AND BUSINESS OPPORTUNITY CLAIMS. ISR is expressly prohibited from making any claims that promoting WhatsUpDoc will guarantee commissions to others who promote WhatsUpDoc. If ISR's recruiting efforts include claims related to income ISR has made as an ISR, the following guidelines must be adhered to:
- ISR's statements must be completely true and accurate and supported by evidence of ISR's experience; and
- ISR's statements must be accompanied by the following disclaimer in clear and conspicuous font: "These were my results. Your results will vary based on a variety of factors including your education, effort, and market factors. There is no guarantee you will make any money."
ISR is expressly prohibited from making any express or implied claims that WhatsUpDoc is, or provides, a business opportunity, franchise opportunity, a "business-in-a-box," or an assisted marketing plan.
A6. WHATSUPDOC'S BUSINESS MARKS. No logo, tagline, brand name, trademark, trade name, trade dress, or ™ (collectively, the "WhatsUpDoc Trademarks") of WhatsUpDoc may be used, copied, or reproduced by any ISR except as set forth below. ISR is expressly prohibited from registering WhatsUpDoc intellectual property (or any mark confusingly similar to any WhatsUpDoc intellectual property) as a trademark or as a domain name in any country.
Subject to the restrictions below, approved ISRs are granted a limited, revocable, non-transferrable, and non-assignable license to use the "WhatsUpDoc" trademark to advertise WhatsUpDoc online. ISR may not use "WhatsUpDocConnect" or other WhatsUpDoc' trademarks as part of any URL, domain or website name.
WhatsUpDoc retains exclusive ownership of all WhatsUpDoc's Trademarks and other intellectual property and all of its rights therein. ISR shall not promote or provide services to any other business or person that is infringing any of WhatsUpDoc's intellectual property.
A7. COMPLAINT NOTIFICATION. ISR must notify WhatsUpDoc of any complaint received by ISR regarding any advertisements within twenty-four (24) hours of receiving such complaint. Notice should be sent to feedback@WhatsUpDocConnect.com