Lexie Hearing
Program Terms
By submitting an Application Form, the Person named in the Application Form (the “Affiliate”), hereby agrees to be bound by the terms of this Agreement, which upon the approval of such application by the Company will constitute a legally binding Agreement entered into by hearX USA Inc. d.b.a. Lexie Hearing, a Delaware corporation with registered address being 2140 South DuPont Highway, Camden, Kent County, Delaware, 19934 (the “Company”) and the Affiliate. Individually referred to as a “Party” and both are collectively referred to as the “Parties”.
On rejection of the Application Form, no agreement will be formed.
THIS AGREEMENT provides the terms and conditions of the relationship between Company and Affiliate in order to participate in the Lexie Hearing Affiliate Marketing Program (the “Program”) through Shareasale.com, Inc. with registered address being 15 W. Hubbard Street, Suite 500, Chicago IL 60654, an AWIN Group Company (“ShareASale”) whereby Affiliate will refer customers to the Company website.
WHEREAS, the Company is the sole owner and operator of the website known as www.lexiehearing.com (the “Site”) to which Affiliates, through the Program, may refer customers from Affiliate Platforms or through Affiliate Content in exchange for agreed consideration for successful sales to Affiliate referred customers; and
WHEREAS, the Affiliate is the operator of the website, application(s) or service(s) (including email services) (“Affiliate Platforms”) and is in a position to refer customers to the Site; and WHEREAS, by entering into this Agreement, the Affiliate hereby agrees to market the Company or its products on the Affiliate Platforms or through Affiliate Content in exchange for the agreed consideration for successful sales to Affiliate referred customers.
THEREFORE, the Parties agree as follows:
1. AGREEMENT:
With effect from the Commencement Date, the Parties hereby agree that the Affiliate shall market Company or its products on its Affiliate Platforms or through its Affiliate Content and the Company shall pay to the Affiliate the agreed commission for each successful sale to Affiliate referred customers, in accordance with the terms and conditions recorded in this Agreement.
2. STATUS OF PARTIES
It is recorded that, notwithstanding any provision to the contrary in this Agreement, nothing in this Agreement shall be construed as creating a partnership or a contract of employment between Company and the Affiliate, and Affiliate will not be, or deemed to be, an agent of Company or hold itself out as having authority or power to bind Company in any way.
3. RECORDALS:
3.1. The Parties acknowledge that there is no requirement under this Agreement or any other agreement between Affiliate and Company to refer any customers to the other
Party.
3.2. The Parties expressly do not intend to take any action that would violate state or federal anti-kickback prohibitions, such as those appearing in Section 1128B of the Social Security Act, 42 USC Section 1320a-7b, the Physician Self-Referral Law, 42 USC Section 1395nn (Stark Laws), the Exclusion Statute 42 USC 1320a-7 and the Civil Monetary Penalties Law, 42 USC 1320a-7a (CMPL).
3.3. The Parties agree that should any governmental agency (or its representatives) which administers any federal healthcare program, or any other federal, state or local government or agency pass, issue, or promulgate any applicable Law, or materially change its current position as to the interpretation of any existing applicable Law, or should any court of competent jurisdiction render a decision or otherwise interpret an applicable Law at any time while this Agreement is in effect in a manner a Party reasonably believes may prohibit, restrict, limit or render illegal the performance of the Agreement, then a Party may give the other Party notice of intent to amend the Agreement in a manner which would reduce the risk that the performance of this Agreement might be found to be prohibited, limited or otherwise illegal, and the Parties shall negotiate in good faith to amend this Agreement in such manner while preserving the substance of the relative economic positions and rights of each Party in all material respects.
3.4. As of the Commencement Date, Affiliate may, from time to time, refer potential customers to Company through its Affiliate Platforms, in accordance with this Agreement.
3.5. Company grants Affiliate during the Term of this Agreement a non-exclusive, non-transferable limited license, limited to within the territory of the continental United States of America, to display such Company Links, Company Content, trade or service marks owned by Company (collectively, the “Company Marks”) only as agreed upon by Company in writing, on its Affiliate Platforms, subject to the terms and conditions of this Agreement. Affiliates may not use, copy or display Company Marks in any manner except as agreed upon in writing by the Company.
3.6. All intellectual property rights in and to the Company Marks, and any goodwill generated by Affiliate’s use of the Company Marks shall inure solely to the benefit of the Company.
3.7. Affiliates will be required to provide at least one active follow-back link to Company for the duration of the Agreement.
3.8. During the term of this Agreement and in consideration for the marketing and referral services provided by Affiliate, Company will pay the Affiliate through its ShareASale account, the commissions for successful sales as specified in the payment schedule attached hereto as Exhibit A, subject to the following:
3.8.1. It shall be the Affiliate's sole responsibility to make all tax submissions and/or declarations in respect of the commissions paid to the Affiliate and to account the correct and full amounts to the appropriate body and/or authority. The Affiliate fully indemnifies the Company against any and all taxes, duties, penalties or otherwise in respect of such commissions.
3.8.2. Affiliates referring to successful sales that result in chargebacks or refunds will be void, and no commission will be applicable to such purchases.
3.8.3. The commissions payable in terms of this section 3 shall be payable into such bank account provided and registered on its ShareASale account.
4. EMAIL MARKETING:
4.1. The Affiliate hereby warrants and agrees that it shall comply with all applicable laws and regulations when referring customers to the Company or communicating with customers through the Affiliate Platforms and Affiliate Content, including email, regarding possible or actual referrals or in any way relating to the Company. The Affiliate will be solely responsible for all distribution of its content and marketing activities (collectively the “Affiliate Content”) and hereby warrants that the Affiliate Content will be professional, and comply with applicable laws and guidelines, including any applicable privacy laws, as well as being in accordance with this Agreement.
4.2. The Affiliate guarantees:
4.2.1. To not act in any way or disseminate or make available any Affiliate Content to customers, that would bring the reputation or good industry standing of the Company into disrepute;
4.2.2. To not perform any acts or disseminate or make available any Affiliate Content, in any way associated with Company, which are discriminatory, illegal, obscene, unsuitable, threatening, defamatory, invasive of privacy, infringing of intellectual property rights or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, any form of “spam” or unsolicited commercial electronic messages.
4.2.3. To not engage in illegal or fraudulent activity in order to generate referrals including, but not limited to:
4.2.3.1. Using or providing incorrect meta-tags;
4.2.3.2. Any attempt to artificially increase commissions or referrals as a way of defrauding the Company. Violation of this provision shall be deemed to be fraud.
4.2.4. Affiliate hereby indemnifies the Company for all claims that may result from any Affiliate Content or activities by Affiliate. Affiliate is solely responsible for the Affiliate Content, and the consequences which may arise in relation thereto. The Company assumes no responsibility or liability for any Affiliate Content or actions.
4.2.5. Affiliate further agrees that it will ensure that all Personal Information that it collects and maintains in association with its affiliation to Company will be:
4.2.5.1. processed lawfully, fairly, and in a transparent manner;
4.2.5.2. collected for specified, explicit and legitimate purposes and not sold or further processed in a manner that is incompatible with those purposes;
4.2.5.3. adequate, relevant, and limited to what is necessary;
4.2.5.4. accurate and kept up to date; and
4.2.5.5. processed in a manner that ensures appropriate security of the Personal Information, including protection against unauthorized or lawful processing and against accidental loss, destruction or damage.
5. SOCIAL MEDIA POLICY:
5.1. All Affiliate social media content must adhere to the content standards applicable to the Affiliate Platform to which it is published.
5.2. Affiliates must, when linking or referring to the Site or any Company online platform through the Affiliate Platforms or in any Affiliate Content, disclose its relationship as an affiliate to Company in compliance with Federal Trade Commission (“FTC”) regulations.
5.3. Affiliate hereby agrees that it will not:
5.3.1. Post material that is threatening, harassing, illegal, obscene, defamatory, libelous, or hostile towards any individual or entity.
5.3.2. Post phone numbers or email addresses in the body of Affiliate Content comments.
5.3.3. Post material that infringes on the rights of the Company or any individual or entity, including privacy, intellectual property or publication rights. This includes but is not limited to, the improper use of images, logos, videos, content, documents, white papers, etc.
5.3.4. Post chain letters, post the same comment multiple times, or otherwise distribute “spam”.
5.3.5. Allow any other individual or entity to use its identification for posting or viewing comments.
5.3.6. Post comments under multiple names or using another person’s name.
5.4. The Affiliate hereby agrees to grant Company a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display any Affiliate Content that the Affiliate may post on its Affiliate Platforms or otherwise disseminate, relating to Company, throughout the world, in any media.
5.5. Affiliate further grants to the Company and any of its sublicensees or subsidiaries the right to use the name that Affiliate submits in connection with such content.
5.6. Affiliate represents and warrants that:
5.6.1. it owns or otherwise controls all of the rights to the Affiliate Content that it posts on the Affiliate Platforms or otherwise disseminates; that the content is accurate; that use of the content supplied does not violate this Agreement and will not cause injury to any person or entity; and
5.6.2. that Affiliate will indemnify the Company for all claims that may result from the posting or dissemination of any Affiliate Content.
5.7. Affiliate is solely responsible for its own communications and the consequences of posting and or publishing those communications. The Company shall take no responsibility and assume no liability for any Affiliate Content or any other content made available by a third party.
6. FEDERAL TRADE COMMISSION DISCLOSURE:
6.1. The Affiliate hereby agrees to adhere to the applicable FTC disclosure and endorsement requirements in all of the Affiliate Content in line with the FTC guidance document, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” which is available on ftc.gov.
6.2. The Affiliate will be required to ensure that the appropriate affiliate disclosures are available on and in its Affiliate Content and that such disclosure is clear and conspicuous, in plain and unambiguous language.
7. PAY PER CLICK POLICY:
7.1. The Parties acknowledge and agree that it is the express intention of the Company to protect its branded keywords in any Google Ad campaigns.
7.2. Affiliate hereby acknowledges and agrees:
7.2.1. That it will not bid on any brand or brand-related terms while performing Pay Per Click (“PPC”) advertising and keyword bidding.
7.2.2. PPC and Keyword Bidding for terms identical or similar (also long tail) to any Company brands, brand names and URLs are strictly prohibited (including, but not limited to the following - “Lexie”, “Lexie Hearing”, “Lexie Hearing Aid”, “Lexie Hearing Aids”, “Lexie Lumen”, “Lexie B1 Powered by Bose”, “Powered by Bose” “Lexie B2 Powered by Bose”, “Powered by Bose”, “Lexie B1", “Lexie B2”, “Lexie B2
Plus”, “Lexie B2 Plus Powered by Bose”, “Lexie OTC”, “Lexie OTC Hearing Aids”, “Lexie OTC Hearing Aid”.
7.2.3. That the Company will not be liable to pay any commission for sales generated from any bid on brand or brand-related terms as per section 7.2.2 and reserves the right to cancel this Agreement, should the Affiliate breach this clause.
7.3. Affiliate will be required to add the keywords as per section 7.2.2 above as negative keywords in any PPC campaigns that it may run.
7.4. Affiliate further agrees that the Company will be permitted to request and obtain read-only access to the Affiliate’s Google Ads account if the Company suspects that Affiliate is using keywords in contravention of this section 7, to ensure compliance.
7.5. If the Affiliate fails to comply with this section 7, it shall be deemed a material breach of this Agreement.
8. COUPONS & DEALS POLICY:
8.1. Company may, at its sole discretion, provide Affiliate with a unique discount code (“Affiliate Coupon”), as designated by Company, which Affiliate may provide to Affiliate referred customers to use with any purchase of Company products through the Site.
8.2. The Company reserves the right to update, change, modify or cancel the Affiliate Coupon at any time, at its own discretion.
8.3. The Affiliate Coupon will entitle a customer to a discount for once-off purchases.
8.4. Customers will be free to choose to use the Affiliate Coupon or any other promotion or coupon offered by Company.
8.5. Customers will only be permitted to use one promotion or coupon per purchase. If the customer elects to use another promotion or coupon, instead of the Affiliate Coupon, Affiliate will remain entitled to a commission for such a successful sale through its Affiliate Platform. A coupon cannot be combined with other offers.
8.6. Affiliate Coupons may only be provided to persons 18 years of age or older.
8.7. Affiliate Coupons have no cash value and are non-refundable and cannot be exchanged either fully or in part for cash of any amount.
8.8. The discount afforded by an Affiliate Coupon is redeemable in its entirety in a single transaction only and may not be redeemed incrementally.
8.9. The Affiliate Coupon discount may not be applied toward the cost of shipping, handling or customs, taxes, duties or other costs or commissions associated with the purchase.
8.10. An Affiliate Coupon discount is not valid on past purchases and cannot be used or claimed retroactively.
8.11. Affiliate Coupons are void in territories where issue or use thereof is prohibited.
8.12. Any refund a customer may be entitled to receive will not include the Affiliate Coupon discount or its redemption value. The customer will receive no more than the amount actually paid towards the purchase price.
8.13. The Company reserves the right to cancel any promotion, issued Affiliate Coupons, close user accounts, and/or request alternative forms of payment if fraudulently obtained Affiliate Coupons are redeemed or used to make purchases.
8.14. The use of automated devices or programs for Affiliate Coupon redemption is prohibited.
9. SALES TRACKING:
9.1. The software code provided by ShareASale from time to time for the recording of web traffic and sales (“Tracking Code”) will be used for recording and determining sales and commissions. No other means of recording or determining sales or commissions shall be used under this Agreement.
9.2. Sales will only be attributed to Affiliates where the Tracking Code records that the Affiliate was responsible for the most recent referral, resulting in a successful sale, of the customer to the Company Site, unless expressly agreed otherwise between the Parties subject to any communicated “cookie hierarchy” or “commission hierarchy”.
10. PAYMENT & RECONCILIATION FREQUENCY:
10.1. Self-referrals for any Affiliate purchases are strictly prohibited. The Affiliate may not refer itself, its immediate family, employees or employer. Affiliates will not receive any commissions for such purchases.
10.2. Commissions will be payable to the Affiliate by the Company for successful purchases made by customers referred from Affiliate Platforms or through Affiliate Content as identified by the Tracking Code.
10.3. Affiliate will only receive one commission per customer for the initial successful sale to such customer. For clarity, Affiliates will not receive a second commission for multiple sales to the same customer.
10.4. Commissions will not be applicable to any Affiliate referred customer sales which do not include the hearing aid device(s) (e.g. where the customer only purchases accessories);
10.5. This commission will only become payable 45 (forty-five) days after the date of the successful sale to an Affiliate referred customer;
10.6. The commissions payable to the Affiliate shall be paid through Company’s ShareASale account within a 45 (forty-five) day rolling cycle from the Commencement Date, following a reconciliation by the Company of the successful sales attributable to the Affiliate.
11. TERM AND TERMINATION:
11.1. This Agreement shall commence on the date which the Company accepts the Affiliate Application ("the Commencement Date"), and shall thereafter endure for a period of 12 (twelve) months whereupon it shall automatically renew for a further term of 12 (twelve) months unless terminated in accordance with this Agreement.
11.2. This Agreement may be terminated at any time by either Party upon 60 (sixty) days written notice to the other Party. No commission shall be payable on any sales made through the Affiliate Platform and/or Affiliate content after termination.
12. BREACH:
12.1. Should Affiliate commit any breach of any term or condition of this Agreement and fail to remedy such breach within 7 (seven) days of receipt of a notice from Company to rectify such breach, the Company shall, without prejudice to any other rights which it may have, be entitled to immediately cancel this Agreement and remove the Lexie Hearing affiliate program on ShareaSale.
12.2. Should the Affiliate bring the reputation or good industry standing of the Company into disrepute, the Company will be entitled to immediately cancel this Agreement, without needing to allow Affiliate any form of opportunity to remedy the damage caused. In either case, Company reserves its right to legal action.
12.3. The Parties hereby acknowledge and agree that in the event of any breach of this Agreement, including, without limitation, the actual or threatened disclosure or unauthorized use of Confidential Information without the prior express written consent of Company, Company may suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury.
12.4. Accordingly, the Parties hereby agree that Company will be entitled to seek specific performance of Affiliate’s obligations under this Agreement and injunctive or other equitable relief as a remedy for any such breach or anticipated breach.
12.5. Any such relief will be in addition to and not in lieu of any appropriate relief in the way of monetary damages as may be granted by a court of competent jurisdiction.
12.6. Should either Party commit a breach of this Agreement and the other Party is required to take legal steps to enforce its rights, the Party that has committed the breach agrees to pay the other Party’s reasonable attorneys’ commissions and costs.
13. DISPUTE RESOLUTION
13.1. Any claim arising out of or relating to this Agreement shall be resolved by arbitration before a single arbitrator in accordance with the then current CPR Non-Administered Arbitration Rules ("CPR Rules") (www.cpradr.org), except where those rules conflict with this provision, in which case this provision controls. Any court with jurisdiction shall enforce this clause and enter judgment on any award.
13.2. The arbitrator shall be selected within twenty (20) business days from commencement of the arbitration from the CPR Panel of Distinguished Neutrals, unless a candidate not on such a panel is approved by both parties.
13.3. Within twenty (20) business days of initiation of arbitration, the Parties shall reach agreement upon and thereafter follow procedures, including limits on discovery, assuring that the arbitration will be concluded and the award rendered within no more than three (3) months from selection of the arbitrator or, failing agreement, procedures meeting such time limits will be designed by the Arbitrator and adhered to by the Parties.
13.4. The arbitration shall be held at such a venue as may be agreed upon in writing between the Parties and the arbitrator shall apply the substantive law controlling this Agreement, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act.
13.5. Prior to commencement of arbitration, emergency relief is available from any court to avoid irreparable harm. Rule 14 of the CPR Rules does not apply to this Agreement.
13.6. Prior to commencement of arbitration, the Parties must attempt to mediate their dispute using a professional mediator from American Arbitration Association, the CPR Institute for Dispute Resolution, or like organization selected by agreement or, absent agreement, through selection procedures administered by the CPR.
13.7. Within a period of twenty (20) business days after the request for mediation, the Parties agree to convene with the mediator, with business representatives present, for at least one session to attempt to resolve the matter. In no event will mediation delay commencement of the arbitration for more than twenty (20) business days absent agreement of the Parties or interfere with the availability of emergency relief.
13.8. All aspects of the mediation and arbitration shall be treated as confidential.
13.9. Any arbitration award, order, or judgment will be final and may be entered and enforced in any court of competent jurisdiction.
13.10. Each Party will submit to any court of competent jurisdiction for purposes of enforcement of any award, order, or judgment in any arbitration brought under this section.
13.11. Each Party may seek, from any court having jurisdiction, any interim or provisional relief that is necessary to protect the rights or property of that Party. By doing so, that Party does not waive any right or remedy under this Agreement. Any such interim or provisional relief will remain in effect until an arbitration award is rendered or the dispute is otherwise resolved.
13.12. The provisions of this section:
13.12.1. constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions; and
13.12.2. are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidation for any reason of this Agreement.
14. CONFIDENTIALITY:
14.1. The Affiliate acknowledges that it may, in the course of its association with the Company, gain access to and become acquainted with the techniques, methods and processes, trade secrets, data, information technology, software, business associates, clients, and other private, sensitive, proprietary and confidential information (“Confidential Information”) of the Company.
14.2. Affiliate accordingly undertakes, for the duration of this Agreement as well as after the termination thereof, not to directly or indirectly, utilize, disclose or make public to any third party any Confidential Information of Company and to keep any Confidential Information secret and confidential at all times, unless such disclosure takes place in the ordinary course of the rendering of the Services in terms of this Agreement.
14.3. The Confidential Information shall not include information which:
14.3.1. was known to the Affiliate prior to its receipt from Company;
14.3.2. is or lawfully becomes generally available to the public;
14.3.3. is lawfully acquired from third parties who have a right to disclose such
information;
14.3.4. by mutual agreement is released from confidential status; or
14.3.5. is required to be disclosed in response to a valid order of court or other governmental, state or federal agency or if disclosure is otherwise required by law, and the Affiliate will provide Company with prompt written notice if such disclosure is required, and shall limit the disclosure to the minimum necessary to comply with the law.
14.4. All of the terms of this Agreement including, but not limited to, the mere fact of its existence, its terms and conditions and the commission payable shall be kept strictly confidential and shall not be disclosed to any third party without the prior written consent of Company save where:
14.4.1. Affiliate is required to disclose such information as a result of regulatory or legal requirement; or
14.4.2. such disclosure is expressly permitted by this Agreement.
14.5. If an Affiliate is required to make a disclosure as a result of a regulatory or legal requirement, the Affiliate shall only disclose what is necessary and, if permitted by law, shall notify the Company of what has been disclosed. .
15. INTELLECTUAL PROPERTY:
15.1. Except as expressly stated herein, Company does not grant Affiliate any rights to or in Company Logos, patents (where registered or unregistered), copyrights, database rights, trade dress, trade secrets, trade names, trademarks (whether registered or unregistered) (“Intellectual Property”), or any other Intellectual Property rights or licenses owned or licensed by Company.
15.2. Affiliate acknowledges and agrees that the Company owns or licenses all rights to its Intellectual Property, including but not limited to, all copyrights, trademarks (whether registered or unregistered), trade names, logos, and service marks. Lexie Rewards® trademarks, the Lexie design mark and the “X” design mark are the property of hearX
IP (Pty) Ltd or its affiliates.
15.3. In addition, any graphics, logos, page headers, button icons, scripts, and service names included in or made available through the Company products and services are trademarks or trade dress of hearX IP (Pty) Ltd or licensed by hearX IP (Pty) or its affiliates. The hearX trademarks and trade dress may not be used in connection with any product or service that is not the property of hearX IP (Pty) Ltd or its affiliates, and in any manner, is likely to cause confusion among customers, or disparages or discredits hearX USA or its affiliates.
15.4. Affiliate hereby agrees not to copy, reproduce, rent, lease, sell, distribute, or create derivative works based on any Intellectual Property owned by Company or any Company published content, by any means, except as expressly authorized in writing by Company.
15.5. Any Third-party trademarks appearing on any Company publications or platforms are the property of their respective owners.
16. REPRESENTATIONS AND WARRANTIES:
16.1. This Agreement is legal and binding between the Parties and the Parties each represent that they have the authority to enter into this Agreement.
16.2. The performance and obligations of either Party will not violate or infringe upon the rights of any third party or violate any other agreement between the Parties, individually, and any other person, organization, or business or any law or governmental regulation.
17. WAIVER:
17.1. Affiliate hereby expressly and unconditionally waives any and all claims against the Company, regardless of the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions:
17.1.1. the Site is partially or totally inoperative or inaccessible;
17.1.2. there are bugs, errors or inaccuracies in the Site;
17.1.3. any claim relating to a change in this Agreement by the Company;
17.1.4. withholdings, deductions or offset in connection with payment of commissions due to applicable tax or currency control restrictions.
17.2. For purposes of this section, any reference to “the Company” shall include the Company's affiliates, officers, employees, principals, agents and contractors.
18. DISCLAIMER:
The Company makes no representations or warranties as to the Site. To the maximum extent of the law, the Company disclaims all representations, warranties and conditions, express and implied, including the warranties of merchantability, fitness for a particular purpose, title and non-infringement. The Site is provided “as is.”
19. INDEMNITY:
19.1. The Parties each agree to indemnify and hold harmless the other Party, its respective affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from the negligence of or breach of this Agreement by the indemnifying party, its respective successors and assigns that occurs in connection with this Agreement.
19.2. This section 19 remains in full force and effect even after termination of the Agreement by its natural termination or the early termination by either party.
20. LIMITATION OF LIABILITY:
Under no circumstances shall either Party be liable to the other Party or any third party for any damages resulting from any part of this Agreement such as, but not limited to, loss of revenue or anticipated profit or lost business, costs of delay or failure of delivery, which are not related to or the direct result of a Party’s negligence or breach.
21. FORCE MAJEURE:
Company shall not be responsible or liable for any delay or failure to fulfill any provision of this Agreement if such a delay or failure results directly or indirectly from any act of God, war, riot, insurrection, embargoes, pandemics, acts of civil or military authorities, fires, floods, explosions, accidents, or any other cause beyond the reasonable control of the Company.
22. MISCELLANEOUS:
22.1. Affiliate shall not, without the prior written approval of the Company, assign, cede, delegate, transfer or otherwise dispose of any right or obligation under this Agreement to any other person.
22.2. No provision of this Agreement may be amended, substituted or otherwise varied, and no provision may be added to or incorporated in this Agreement, except (in any such case) by an agreement in writing signed by the duly authorized representatives of the Parties.
22.3. Any relaxation, indulgence or delay (collectively referred to as “Indulgence”) by either
Party in exercising, or any failure by either Party to exercise, any right under this Agreement shall not be construed as a waiver of that right and shall not affect the ability of that Party subsequently to exercise that right or to pursue any remedy, nor shall any Indulgence constitute a waiver of any other right (whether against that Party or any other person).
22.4. The waiver of any right under this Agreement shall be binding on the waiving Party only to the extent that the waiver has been reduced to writing and signed by the duly authorized representative(s) of the waiving Party.
22.5. Whenever possible, each provision of this Agreement shall be interpreted in a manner that makes it effective and valid under applicable law, but if any provision of this Agreement is held to be illegal, invalid or unenforceable under applicable law, such illegality, invalidity or unenforceability shall not affect the other provisions of this Agreement, all of which shall remain in full force and effect.
22.6. All notices and any other communications whatsoever (including, without limitation, any approval, consent, demand, query or request) by either Party in terms of this Agreement or relating to it shall be given in writing, and shall be sent by registered post, or delivered by hand, or transmitted by electronic mail to the recipient Party at its relevant address set out below:
22.6.1. if to Company at:
Address: 2140 South DuPont Highway,
Camden, Kent County,
Delaware, 19934
Electronic mail address: legal@hearxgroup.com Marked for the attention of: Legal Department
22.6.2. if to Affiliate at its provided information on ShareaSale.
22.7. Either Party may, by written notice to the other Party, change any of the addresses at which, or the designated person for whose attention those notices or other communications are to be given.
22.8. Any notice or other communication given by any Party to the other Party which:
22.8.1. is sent by registered post to the addressee at its specified address shall be rebuttably presumed to have been received by the addressee on the 7th (seventh) day after the date of posting; or
22.8.2. is delivered by hand during the normal business hours of the addressee at its specified address shall be rebuttably presumed to have been received by the addressee at the time of delivery; or
22.8.3. is transmitted by electronic mail to the addressee at the addressee’s specified electronic mail address shall be rebuttably presumed to have been received by the addressee on the date of transmission as reflected on the sender’s electronic mail records.
23. APPLICABLE LAW
This Agreement and the interpretation of its terms shall be governed by and construed in accordance with the laws of the State of Delaware, whose Courts, including both state and federal courts will have exclusive jurisdiction in any dispute, without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware.
24. ENTIRE AGREEMENT
This Agreement represents the full understanding of the Parties and shall supersede all previous oral or written agreements regarding the subject matter herein. No modification of this Agreement shall be valid unless in writing and agreed upon by both Parties. v.1.2
EXHIBIT A:
COMMISSION SCHEDULE
The Company will periodically assess each Affiliate’s sales performance and reserves the right to adjust the commission percentage at its discretion.
For each initial successful sale to an Affiliate referred customer, the Affiliate will be entitled to receive commission starting from 7% per sale.
Affiliate commission structure is available for view on the Affiliate Shareasale dashboard.
Product Commission ($)*
Subject to change
Pair of Lexie Lumen hearing aids - once-off $55,93 USD
Pair of Lexie B1 Powered by Bose hearing aids - once-off $59,43USD
Pair of Lexie B2 Plus Powered by Bose hearing aids - once-off $69,93
On rejection of the Application Form, no agreement will be formed.
THIS AGREEMENT provides the terms and conditions of the relationship between Company and Affiliate in order to participate in the Lexie Hearing Affiliate Marketing Program (the “Program”) through Shareasale.com, Inc. with registered address being 15 W. Hubbard Street, Suite 500, Chicago IL 60654, an AWIN Group Company (“ShareASale”) whereby Affiliate will refer customers to the Company website.
WHEREAS, the Company is the sole owner and operator of the website known as www.lexiehearing.com (the “Site”) to which Affiliates, through the Program, may refer customers from Affiliate Platforms or through Affiliate Content in exchange for agreed consideration for successful sales to Affiliate referred customers; and
WHEREAS, the Affiliate is the operator of the website, application(s) or service(s) (including email services) (“Affiliate Platforms”) and is in a position to refer customers to the Site; and WHEREAS, by entering into this Agreement, the Affiliate hereby agrees to market the Company or its products on the Affiliate Platforms or through Affiliate Content in exchange for the agreed consideration for successful sales to Affiliate referred customers.
THEREFORE, the Parties agree as follows:
1. AGREEMENT:
With effect from the Commencement Date, the Parties hereby agree that the Affiliate shall market Company or its products on its Affiliate Platforms or through its Affiliate Content and the Company shall pay to the Affiliate the agreed commission for each successful sale to Affiliate referred customers, in accordance with the terms and conditions recorded in this Agreement.
2. STATUS OF PARTIES
It is recorded that, notwithstanding any provision to the contrary in this Agreement, nothing in this Agreement shall be construed as creating a partnership or a contract of employment between Company and the Affiliate, and Affiliate will not be, or deemed to be, an agent of Company or hold itself out as having authority or power to bind Company in any way.
3. RECORDALS:
3.1. The Parties acknowledge that there is no requirement under this Agreement or any other agreement between Affiliate and Company to refer any customers to the other
Party.
3.2. The Parties expressly do not intend to take any action that would violate state or federal anti-kickback prohibitions, such as those appearing in Section 1128B of the Social Security Act, 42 USC Section 1320a-7b, the Physician Self-Referral Law, 42 USC Section 1395nn (Stark Laws), the Exclusion Statute 42 USC 1320a-7 and the Civil Monetary Penalties Law, 42 USC 1320a-7a (CMPL).
3.3. The Parties agree that should any governmental agency (or its representatives) which administers any federal healthcare program, or any other federal, state or local government or agency pass, issue, or promulgate any applicable Law, or materially change its current position as to the interpretation of any existing applicable Law, or should any court of competent jurisdiction render a decision or otherwise interpret an applicable Law at any time while this Agreement is in effect in a manner a Party reasonably believes may prohibit, restrict, limit or render illegal the performance of the Agreement, then a Party may give the other Party notice of intent to amend the Agreement in a manner which would reduce the risk that the performance of this Agreement might be found to be prohibited, limited or otherwise illegal, and the Parties shall negotiate in good faith to amend this Agreement in such manner while preserving the substance of the relative economic positions and rights of each Party in all material respects.
3.4. As of the Commencement Date, Affiliate may, from time to time, refer potential customers to Company through its Affiliate Platforms, in accordance with this Agreement.
3.5. Company grants Affiliate during the Term of this Agreement a non-exclusive, non-transferable limited license, limited to within the territory of the continental United States of America, to display such Company Links, Company Content, trade or service marks owned by Company (collectively, the “Company Marks”) only as agreed upon by Company in writing, on its Affiliate Platforms, subject to the terms and conditions of this Agreement. Affiliates may not use, copy or display Company Marks in any manner except as agreed upon in writing by the Company.
3.6. All intellectual property rights in and to the Company Marks, and any goodwill generated by Affiliate’s use of the Company Marks shall inure solely to the benefit of the Company.
3.7. Affiliates will be required to provide at least one active follow-back link to Company for the duration of the Agreement.
3.8. During the term of this Agreement and in consideration for the marketing and referral services provided by Affiliate, Company will pay the Affiliate through its ShareASale account, the commissions for successful sales as specified in the payment schedule attached hereto as Exhibit A, subject to the following:
3.8.1. It shall be the Affiliate's sole responsibility to make all tax submissions and/or declarations in respect of the commissions paid to the Affiliate and to account the correct and full amounts to the appropriate body and/or authority. The Affiliate fully indemnifies the Company against any and all taxes, duties, penalties or otherwise in respect of such commissions.
3.8.2. Affiliates referring to successful sales that result in chargebacks or refunds will be void, and no commission will be applicable to such purchases.
3.8.3. The commissions payable in terms of this section 3 shall be payable into such bank account provided and registered on its ShareASale account.
4. EMAIL MARKETING:
4.1. The Affiliate hereby warrants and agrees that it shall comply with all applicable laws and regulations when referring customers to the Company or communicating with customers through the Affiliate Platforms and Affiliate Content, including email, regarding possible or actual referrals or in any way relating to the Company. The Affiliate will be solely responsible for all distribution of its content and marketing activities (collectively the “Affiliate Content”) and hereby warrants that the Affiliate Content will be professional, and comply with applicable laws and guidelines, including any applicable privacy laws, as well as being in accordance with this Agreement.
4.2. The Affiliate guarantees:
4.2.1. To not act in any way or disseminate or make available any Affiliate Content to customers, that would bring the reputation or good industry standing of the Company into disrepute;
4.2.2. To not perform any acts or disseminate or make available any Affiliate Content, in any way associated with Company, which are discriminatory, illegal, obscene, unsuitable, threatening, defamatory, invasive of privacy, infringing of intellectual property rights or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, any form of “spam” or unsolicited commercial electronic messages.
4.2.3. To not engage in illegal or fraudulent activity in order to generate referrals including, but not limited to:
4.2.3.1. Using or providing incorrect meta-tags;
4.2.3.2. Any attempt to artificially increase commissions or referrals as a way of defrauding the Company. Violation of this provision shall be deemed to be fraud.
4.2.4. Affiliate hereby indemnifies the Company for all claims that may result from any Affiliate Content or activities by Affiliate. Affiliate is solely responsible for the Affiliate Content, and the consequences which may arise in relation thereto. The Company assumes no responsibility or liability for any Affiliate Content or actions.
4.2.5. Affiliate further agrees that it will ensure that all Personal Information that it collects and maintains in association with its affiliation to Company will be:
4.2.5.1. processed lawfully, fairly, and in a transparent manner;
4.2.5.2. collected for specified, explicit and legitimate purposes and not sold or further processed in a manner that is incompatible with those purposes;
4.2.5.3. adequate, relevant, and limited to what is necessary;
4.2.5.4. accurate and kept up to date; and
4.2.5.5. processed in a manner that ensures appropriate security of the Personal Information, including protection against unauthorized or lawful processing and against accidental loss, destruction or damage.
5. SOCIAL MEDIA POLICY:
5.1. All Affiliate social media content must adhere to the content standards applicable to the Affiliate Platform to which it is published.
5.2. Affiliates must, when linking or referring to the Site or any Company online platform through the Affiliate Platforms or in any Affiliate Content, disclose its relationship as an affiliate to Company in compliance with Federal Trade Commission (“FTC”) regulations.
5.3. Affiliate hereby agrees that it will not:
5.3.1. Post material that is threatening, harassing, illegal, obscene, defamatory, libelous, or hostile towards any individual or entity.
5.3.2. Post phone numbers or email addresses in the body of Affiliate Content comments.
5.3.3. Post material that infringes on the rights of the Company or any individual or entity, including privacy, intellectual property or publication rights. This includes but is not limited to, the improper use of images, logos, videos, content, documents, white papers, etc.
5.3.4. Post chain letters, post the same comment multiple times, or otherwise distribute “spam”.
5.3.5. Allow any other individual or entity to use its identification for posting or viewing comments.
5.3.6. Post comments under multiple names or using another person’s name.
5.4. The Affiliate hereby agrees to grant Company a nonexclusive, royalty-free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute and display any Affiliate Content that the Affiliate may post on its Affiliate Platforms or otherwise disseminate, relating to Company, throughout the world, in any media.
5.5. Affiliate further grants to the Company and any of its sublicensees or subsidiaries the right to use the name that Affiliate submits in connection with such content.
5.6. Affiliate represents and warrants that:
5.6.1. it owns or otherwise controls all of the rights to the Affiliate Content that it posts on the Affiliate Platforms or otherwise disseminates; that the content is accurate; that use of the content supplied does not violate this Agreement and will not cause injury to any person or entity; and
5.6.2. that Affiliate will indemnify the Company for all claims that may result from the posting or dissemination of any Affiliate Content.
5.7. Affiliate is solely responsible for its own communications and the consequences of posting and or publishing those communications. The Company shall take no responsibility and assume no liability for any Affiliate Content or any other content made available by a third party.
6. FEDERAL TRADE COMMISSION DISCLOSURE:
6.1. The Affiliate hereby agrees to adhere to the applicable FTC disclosure and endorsement requirements in all of the Affiliate Content in line with the FTC guidance document, “.com Disclosures: How to Make Effective Disclosures in Digital Advertising,” which is available on ftc.gov.
6.2. The Affiliate will be required to ensure that the appropriate affiliate disclosures are available on and in its Affiliate Content and that such disclosure is clear and conspicuous, in plain and unambiguous language.
7. PAY PER CLICK POLICY:
7.1. The Parties acknowledge and agree that it is the express intention of the Company to protect its branded keywords in any Google Ad campaigns.
7.2. Affiliate hereby acknowledges and agrees:
7.2.1. That it will not bid on any brand or brand-related terms while performing Pay Per Click (“PPC”) advertising and keyword bidding.
7.2.2. PPC and Keyword Bidding for terms identical or similar (also long tail) to any Company brands, brand names and URLs are strictly prohibited (including, but not limited to the following - “Lexie”, “Lexie Hearing”, “Lexie Hearing Aid”, “Lexie Hearing Aids”, “Lexie Lumen”, “Lexie B1 Powered by Bose”, “Powered by Bose” “Lexie B2 Powered by Bose”, “Powered by Bose”, “Lexie B1", “Lexie B2”, “Lexie B2
Plus”, “Lexie B2 Plus Powered by Bose”, “Lexie OTC”, “Lexie OTC Hearing Aids”, “Lexie OTC Hearing Aid”.
7.2.3. That the Company will not be liable to pay any commission for sales generated from any bid on brand or brand-related terms as per section 7.2.2 and reserves the right to cancel this Agreement, should the Affiliate breach this clause.
7.3. Affiliate will be required to add the keywords as per section 7.2.2 above as negative keywords in any PPC campaigns that it may run.
7.4. Affiliate further agrees that the Company will be permitted to request and obtain read-only access to the Affiliate’s Google Ads account if the Company suspects that Affiliate is using keywords in contravention of this section 7, to ensure compliance.
7.5. If the Affiliate fails to comply with this section 7, it shall be deemed a material breach of this Agreement.
8. COUPONS & DEALS POLICY:
8.1. Company may, at its sole discretion, provide Affiliate with a unique discount code (“Affiliate Coupon”), as designated by Company, which Affiliate may provide to Affiliate referred customers to use with any purchase of Company products through the Site.
8.2. The Company reserves the right to update, change, modify or cancel the Affiliate Coupon at any time, at its own discretion.
8.3. The Affiliate Coupon will entitle a customer to a discount for once-off purchases.
8.4. Customers will be free to choose to use the Affiliate Coupon or any other promotion or coupon offered by Company.
8.5. Customers will only be permitted to use one promotion or coupon per purchase. If the customer elects to use another promotion or coupon, instead of the Affiliate Coupon, Affiliate will remain entitled to a commission for such a successful sale through its Affiliate Platform. A coupon cannot be combined with other offers.
8.6. Affiliate Coupons may only be provided to persons 18 years of age or older.
8.7. Affiliate Coupons have no cash value and are non-refundable and cannot be exchanged either fully or in part for cash of any amount.
8.8. The discount afforded by an Affiliate Coupon is redeemable in its entirety in a single transaction only and may not be redeemed incrementally.
8.9. The Affiliate Coupon discount may not be applied toward the cost of shipping, handling or customs, taxes, duties or other costs or commissions associated with the purchase.
8.10. An Affiliate Coupon discount is not valid on past purchases and cannot be used or claimed retroactively.
8.11. Affiliate Coupons are void in territories where issue or use thereof is prohibited.
8.12. Any refund a customer may be entitled to receive will not include the Affiliate Coupon discount or its redemption value. The customer will receive no more than the amount actually paid towards the purchase price.
8.13. The Company reserves the right to cancel any promotion, issued Affiliate Coupons, close user accounts, and/or request alternative forms of payment if fraudulently obtained Affiliate Coupons are redeemed or used to make purchases.
8.14. The use of automated devices or programs for Affiliate Coupon redemption is prohibited.
9. SALES TRACKING:
9.1. The software code provided by ShareASale from time to time for the recording of web traffic and sales (“Tracking Code”) will be used for recording and determining sales and commissions. No other means of recording or determining sales or commissions shall be used under this Agreement.
9.2. Sales will only be attributed to Affiliates where the Tracking Code records that the Affiliate was responsible for the most recent referral, resulting in a successful sale, of the customer to the Company Site, unless expressly agreed otherwise between the Parties subject to any communicated “cookie hierarchy” or “commission hierarchy”.
10. PAYMENT & RECONCILIATION FREQUENCY:
10.1. Self-referrals for any Affiliate purchases are strictly prohibited. The Affiliate may not refer itself, its immediate family, employees or employer. Affiliates will not receive any commissions for such purchases.
10.2. Commissions will be payable to the Affiliate by the Company for successful purchases made by customers referred from Affiliate Platforms or through Affiliate Content as identified by the Tracking Code.
10.3. Affiliate will only receive one commission per customer for the initial successful sale to such customer. For clarity, Affiliates will not receive a second commission for multiple sales to the same customer.
10.4. Commissions will not be applicable to any Affiliate referred customer sales which do not include the hearing aid device(s) (e.g. where the customer only purchases accessories);
10.5. This commission will only become payable 45 (forty-five) days after the date of the successful sale to an Affiliate referred customer;
10.6. The commissions payable to the Affiliate shall be paid through Company’s ShareASale account within a 45 (forty-five) day rolling cycle from the Commencement Date, following a reconciliation by the Company of the successful sales attributable to the Affiliate.
11. TERM AND TERMINATION:
11.1. This Agreement shall commence on the date which the Company accepts the Affiliate Application ("the Commencement Date"), and shall thereafter endure for a period of 12 (twelve) months whereupon it shall automatically renew for a further term of 12 (twelve) months unless terminated in accordance with this Agreement.
11.2. This Agreement may be terminated at any time by either Party upon 60 (sixty) days written notice to the other Party. No commission shall be payable on any sales made through the Affiliate Platform and/or Affiliate content after termination.
12. BREACH:
12.1. Should Affiliate commit any breach of any term or condition of this Agreement and fail to remedy such breach within 7 (seven) days of receipt of a notice from Company to rectify such breach, the Company shall, without prejudice to any other rights which it may have, be entitled to immediately cancel this Agreement and remove the Lexie Hearing affiliate program on ShareaSale.
12.2. Should the Affiliate bring the reputation or good industry standing of the Company into disrepute, the Company will be entitled to immediately cancel this Agreement, without needing to allow Affiliate any form of opportunity to remedy the damage caused. In either case, Company reserves its right to legal action.
12.3. The Parties hereby acknowledge and agree that in the event of any breach of this Agreement, including, without limitation, the actual or threatened disclosure or unauthorized use of Confidential Information without the prior express written consent of Company, Company may suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury.
12.4. Accordingly, the Parties hereby agree that Company will be entitled to seek specific performance of Affiliate’s obligations under this Agreement and injunctive or other equitable relief as a remedy for any such breach or anticipated breach.
12.5. Any such relief will be in addition to and not in lieu of any appropriate relief in the way of monetary damages as may be granted by a court of competent jurisdiction.
12.6. Should either Party commit a breach of this Agreement and the other Party is required to take legal steps to enforce its rights, the Party that has committed the breach agrees to pay the other Party’s reasonable attorneys’ commissions and costs.
13. DISPUTE RESOLUTION
13.1. Any claim arising out of or relating to this Agreement shall be resolved by arbitration before a single arbitrator in accordance with the then current CPR Non-Administered Arbitration Rules ("CPR Rules") (www.cpradr.org), except where those rules conflict with this provision, in which case this provision controls. Any court with jurisdiction shall enforce this clause and enter judgment on any award.
13.2. The arbitrator shall be selected within twenty (20) business days from commencement of the arbitration from the CPR Panel of Distinguished Neutrals, unless a candidate not on such a panel is approved by both parties.
13.3. Within twenty (20) business days of initiation of arbitration, the Parties shall reach agreement upon and thereafter follow procedures, including limits on discovery, assuring that the arbitration will be concluded and the award rendered within no more than three (3) months from selection of the arbitrator or, failing agreement, procedures meeting such time limits will be designed by the Arbitrator and adhered to by the Parties.
13.4. The arbitration shall be held at such a venue as may be agreed upon in writing between the Parties and the arbitrator shall apply the substantive law controlling this Agreement, except that the interpretation and enforcement of this arbitration provision shall be governed by the Federal Arbitration Act.
13.5. Prior to commencement of arbitration, emergency relief is available from any court to avoid irreparable harm. Rule 14 of the CPR Rules does not apply to this Agreement.
13.6. Prior to commencement of arbitration, the Parties must attempt to mediate their dispute using a professional mediator from American Arbitration Association, the CPR Institute for Dispute Resolution, or like organization selected by agreement or, absent agreement, through selection procedures administered by the CPR.
13.7. Within a period of twenty (20) business days after the request for mediation, the Parties agree to convene with the mediator, with business representatives present, for at least one session to attempt to resolve the matter. In no event will mediation delay commencement of the arbitration for more than twenty (20) business days absent agreement of the Parties or interfere with the availability of emergency relief.
13.8. All aspects of the mediation and arbitration shall be treated as confidential.
13.9. Any arbitration award, order, or judgment will be final and may be entered and enforced in any court of competent jurisdiction.
13.10. Each Party will submit to any court of competent jurisdiction for purposes of enforcement of any award, order, or judgment in any arbitration brought under this section.
13.11. Each Party may seek, from any court having jurisdiction, any interim or provisional relief that is necessary to protect the rights or property of that Party. By doing so, that Party does not waive any right or remedy under this Agreement. Any such interim or provisional relief will remain in effect until an arbitration award is rendered or the dispute is otherwise resolved.
13.12. The provisions of this section:
13.12.1. constitute an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions; and
13.12.2. are severable from the rest of this Agreement and shall remain in effect despite the termination of or invalidation for any reason of this Agreement.
14. CONFIDENTIALITY:
14.1. The Affiliate acknowledges that it may, in the course of its association with the Company, gain access to and become acquainted with the techniques, methods and processes, trade secrets, data, information technology, software, business associates, clients, and other private, sensitive, proprietary and confidential information (“Confidential Information”) of the Company.
14.2. Affiliate accordingly undertakes, for the duration of this Agreement as well as after the termination thereof, not to directly or indirectly, utilize, disclose or make public to any third party any Confidential Information of Company and to keep any Confidential Information secret and confidential at all times, unless such disclosure takes place in the ordinary course of the rendering of the Services in terms of this Agreement.
14.3. The Confidential Information shall not include information which:
14.3.1. was known to the Affiliate prior to its receipt from Company;
14.3.2. is or lawfully becomes generally available to the public;
14.3.3. is lawfully acquired from third parties who have a right to disclose such
information;
14.3.4. by mutual agreement is released from confidential status; or
14.3.5. is required to be disclosed in response to a valid order of court or other governmental, state or federal agency or if disclosure is otherwise required by law, and the Affiliate will provide Company with prompt written notice if such disclosure is required, and shall limit the disclosure to the minimum necessary to comply with the law.
14.4. All of the terms of this Agreement including, but not limited to, the mere fact of its existence, its terms and conditions and the commission payable shall be kept strictly confidential and shall not be disclosed to any third party without the prior written consent of Company save where:
14.4.1. Affiliate is required to disclose such information as a result of regulatory or legal requirement; or
14.4.2. such disclosure is expressly permitted by this Agreement.
14.5. If an Affiliate is required to make a disclosure as a result of a regulatory or legal requirement, the Affiliate shall only disclose what is necessary and, if permitted by law, shall notify the Company of what has been disclosed. .
15. INTELLECTUAL PROPERTY:
15.1. Except as expressly stated herein, Company does not grant Affiliate any rights to or in Company Logos, patents (where registered or unregistered), copyrights, database rights, trade dress, trade secrets, trade names, trademarks (whether registered or unregistered) (“Intellectual Property”), or any other Intellectual Property rights or licenses owned or licensed by Company.
15.2. Affiliate acknowledges and agrees that the Company owns or licenses all rights to its Intellectual Property, including but not limited to, all copyrights, trademarks (whether registered or unregistered), trade names, logos, and service marks. Lexie Rewards® trademarks, the Lexie design mark and the “X” design mark are the property of hearX
IP (Pty) Ltd or its affiliates.
15.3. In addition, any graphics, logos, page headers, button icons, scripts, and service names included in or made available through the Company products and services are trademarks or trade dress of hearX IP (Pty) Ltd or licensed by hearX IP (Pty) or its affiliates. The hearX trademarks and trade dress may not be used in connection with any product or service that is not the property of hearX IP (Pty) Ltd or its affiliates, and in any manner, is likely to cause confusion among customers, or disparages or discredits hearX USA or its affiliates.
15.4. Affiliate hereby agrees not to copy, reproduce, rent, lease, sell, distribute, or create derivative works based on any Intellectual Property owned by Company or any Company published content, by any means, except as expressly authorized in writing by Company.
15.5. Any Third-party trademarks appearing on any Company publications or platforms are the property of their respective owners.
16. REPRESENTATIONS AND WARRANTIES:
16.1. This Agreement is legal and binding between the Parties and the Parties each represent that they have the authority to enter into this Agreement.
16.2. The performance and obligations of either Party will not violate or infringe upon the rights of any third party or violate any other agreement between the Parties, individually, and any other person, organization, or business or any law or governmental regulation.
17. WAIVER:
17.1. Affiliate hereby expressly and unconditionally waives any and all claims against the Company, regardless of the bases upon which such claim(s) may be made, that may be based on, arise in connection with or be related to any of the following acts, circumstances or conditions:
17.1.1. the Site is partially or totally inoperative or inaccessible;
17.1.2. there are bugs, errors or inaccuracies in the Site;
17.1.3. any claim relating to a change in this Agreement by the Company;
17.1.4. withholdings, deductions or offset in connection with payment of commissions due to applicable tax or currency control restrictions.
17.2. For purposes of this section, any reference to “the Company” shall include the Company's affiliates, officers, employees, principals, agents and contractors.
18. DISCLAIMER:
The Company makes no representations or warranties as to the Site. To the maximum extent of the law, the Company disclaims all representations, warranties and conditions, express and implied, including the warranties of merchantability, fitness for a particular purpose, title and non-infringement. The Site is provided “as is.”
19. INDEMNITY:
19.1. The Parties each agree to indemnify and hold harmless the other Party, its respective affiliates, officers, agents, employees, and permitted successors and assigns against any and all claims, losses, damages, liabilities, penalties, punitive damages, expenses, reasonable legal fees and costs of any kind or amount whatsoever, which result from the negligence of or breach of this Agreement by the indemnifying party, its respective successors and assigns that occurs in connection with this Agreement.
19.2. This section 19 remains in full force and effect even after termination of the Agreement by its natural termination or the early termination by either party.
20. LIMITATION OF LIABILITY:
Under no circumstances shall either Party be liable to the other Party or any third party for any damages resulting from any part of this Agreement such as, but not limited to, loss of revenue or anticipated profit or lost business, costs of delay or failure of delivery, which are not related to or the direct result of a Party’s negligence or breach.
21. FORCE MAJEURE:
Company shall not be responsible or liable for any delay or failure to fulfill any provision of this Agreement if such a delay or failure results directly or indirectly from any act of God, war, riot, insurrection, embargoes, pandemics, acts of civil or military authorities, fires, floods, explosions, accidents, or any other cause beyond the reasonable control of the Company.
22. MISCELLANEOUS:
22.1. Affiliate shall not, without the prior written approval of the Company, assign, cede, delegate, transfer or otherwise dispose of any right or obligation under this Agreement to any other person.
22.2. No provision of this Agreement may be amended, substituted or otherwise varied, and no provision may be added to or incorporated in this Agreement, except (in any such case) by an agreement in writing signed by the duly authorized representatives of the Parties.
22.3. Any relaxation, indulgence or delay (collectively referred to as “Indulgence”) by either
Party in exercising, or any failure by either Party to exercise, any right under this Agreement shall not be construed as a waiver of that right and shall not affect the ability of that Party subsequently to exercise that right or to pursue any remedy, nor shall any Indulgence constitute a waiver of any other right (whether against that Party or any other person).
22.4. The waiver of any right under this Agreement shall be binding on the waiving Party only to the extent that the waiver has been reduced to writing and signed by the duly authorized representative(s) of the waiving Party.
22.5. Whenever possible, each provision of this Agreement shall be interpreted in a manner that makes it effective and valid under applicable law, but if any provision of this Agreement is held to be illegal, invalid or unenforceable under applicable law, such illegality, invalidity or unenforceability shall not affect the other provisions of this Agreement, all of which shall remain in full force and effect.
22.6. All notices and any other communications whatsoever (including, without limitation, any approval, consent, demand, query or request) by either Party in terms of this Agreement or relating to it shall be given in writing, and shall be sent by registered post, or delivered by hand, or transmitted by electronic mail to the recipient Party at its relevant address set out below:
22.6.1. if to Company at:
Address: 2140 South DuPont Highway,
Camden, Kent County,
Delaware, 19934
Electronic mail address: legal@hearxgroup.com Marked for the attention of: Legal Department
22.6.2. if to Affiliate at its provided information on ShareaSale.
22.7. Either Party may, by written notice to the other Party, change any of the addresses at which, or the designated person for whose attention those notices or other communications are to be given.
22.8. Any notice or other communication given by any Party to the other Party which:
22.8.1. is sent by registered post to the addressee at its specified address shall be rebuttably presumed to have been received by the addressee on the 7th (seventh) day after the date of posting; or
22.8.2. is delivered by hand during the normal business hours of the addressee at its specified address shall be rebuttably presumed to have been received by the addressee at the time of delivery; or
22.8.3. is transmitted by electronic mail to the addressee at the addressee’s specified electronic mail address shall be rebuttably presumed to have been received by the addressee on the date of transmission as reflected on the sender’s electronic mail records.
23. APPLICABLE LAW
This Agreement and the interpretation of its terms shall be governed by and construed in accordance with the laws of the State of Delaware, whose Courts, including both state and federal courts will have exclusive jurisdiction in any dispute, without giving effect to any choice-of-law or conflict-of-law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware.
24. ENTIRE AGREEMENT
This Agreement represents the full understanding of the Parties and shall supersede all previous oral or written agreements regarding the subject matter herein. No modification of this Agreement shall be valid unless in writing and agreed upon by both Parties. v.1.2
EXHIBIT A:
COMMISSION SCHEDULE
The Company will periodically assess each Affiliate’s sales performance and reserves the right to adjust the commission percentage at its discretion.
For each initial successful sale to an Affiliate referred customer, the Affiliate will be entitled to receive commission starting from 7% per sale.
Affiliate commission structure is available for view on the Affiliate Shareasale dashboard.
Product Commission ($)*
Subject to change
Pair of Lexie Lumen hearing aids - once-off $55,93 USD
Pair of Lexie B1 Powered by Bose hearing aids - once-off $59,43USD
Pair of Lexie B2 Plus Powered by Bose hearing aids - once-off $69,93