Hyland's Consumer Health
Program Terms
No PPC bidding on any of our brands terms or a phase match or variation of it.
No TM+ bidding without explicit approval.
Last updated: November, 2023
This Affiliate Agreement (“Agreement”) is a legally binding contract that
contains the complete terms and conditions that apply to an
individual’s or entity’s participation in the Hyland’s Naturals Affiliate
Program (“Program”), which is operated through an affiliate network
(“Affiliate Network”) that is currently run by Shareasale.com
(“Shareasale.com”). This Agreement is made and entered into by
Hyland's Consumer Health, Inc. (“Hyland’s Naturals) and you, the
applicant. As used in this Agreement, “we”, “us” or “our” means Hyland’s
Naturals and “you” or “your” means the applicant. If you are entering
into this Agreement not as an individual but on behalf of your company,
then “you” means your company, and you hereby represent and
warrant that you have the authority to bind your company to this
Agreement. “Site” means a World Wide Web site and, depending on the
context, refers either to (a) the Hyland’s Naturals site located at the URL
https://hylands.com/ or such other site as Hyland’s Naturals might
designate, or (b) the site that you will link to our Site and which you
have identified in your Program application. By participating in the
Program or clicking an “I accept” or similar button or doing any other
act to indicate your consent, you represent that you have read,
understand, and agree to be bound by the terms of this Agreement. To
begin the enrollment process, you need to submit a complete Program
application at the Affiliate Network operator’s website (currently
located at www.shareasale.com) (“Affiliate Network Site”). We will
evaluate your application and will notify you through the Affiliate
Network Site of your acceptance or rejection. If we do not notify you
that you are accepted to participate in the Program within thirty (30)
days from your application, your application is considered to be
rejected. We may reject your application for any reason, including, but
not limited to our determination, in our sole discretion, that your Site is
unsuitable for the Program. Unsuitable sites include, but are not limited
to, those that: (a) contain or link to nudity or pornography or promote
sexually explicit materials; (b) promote violence; (c) promote
discrimination based on race, sex, religion, nationality, disability, sexual
orientation or age; (d) promote illegal activities; (e) infringe our
intellectual property rights or those of any third party or otherwise
violate the rights of any third party; (f) contain, in our sole judgment,
material that is defamatory, fraudulent, or harassing to us or any third
party; (g) promote the use of any pyramid or similar schemes; (h)
contain software downloads that potentially enable diversions of
commissions from other sites, (i) include any of our marks or product
designations, including “Hyland’s naturals”, “Hylands” “hylandsnaturals”,
“hylands.com”, “Cold and Cough”, variations or misspellings thereof, in
their domain names; (j) have a clear stated mission that is in part to
support religious or politically active causes, as represented on the
homepage or one of the key landing pages; or (k) distribute content to
third parties. If a site distributes content to third parties and the
operator of it is willing to give Hyland’s Naturals a list, for approval, of
all sites, which currently feature the content, and written notice upon
acceptance of any new distribution partnerships, the site may be
accepted into the Program. The following terms and conditions will be
effective if and only if we accept your application and will become
effective immediately upon notification of your acceptance into the
Program. By applying to be an affiliate, you agree to be bound and
abide by such terms and conditions.
1. Links on Your Site. To permit accurate tracking, reporting and referral
fee accrual, we will authorize the entity running the Affiliate Network to
give you access on the Affiliate Network Site to special “tagged” link
formats (“Special Links”) to be used in all links between your Site and
our Site. You must ensure that each of the links between your Site and
our Site properly uses such Special Link formats. We will not be liable to
you with respect to any failure by you to use Special Links, including to
the extent that such failure may result in any reduction of amounts that
would otherwise be paid to you pursuant to this Agreement. Each
Special Link, as viewed by a customer, will be in the form of a Hyland’s
Naturals logo, text link or product provided by us. The Hyland’s
Naturals logo for each Special Link will be served by Affiliate Network
servers, which can only be accessed by using the special “tagged” link
formats. You agree only to use the Hyland’s Naturals logos and images
provided by us via the Affiliate Network Site, and you further agree not
to obtain or use Hyland’s Naturals logos or images from any other
source. Your Site’s title and other trademarks and linking logos must
appear at least as prominently as the Hyland’s Naturals logo that is
used to create the Special Link.
As a condition of your participation in the Program, you must comply
with all laws, rules and regulations applicable to your participation in
the Program, including for example, the requirement to make proper
and appropriate disclosures in compliance with the Endorsement and
Testimonial Guidelines published by the United States Federal Trade
Commission (available at
http://www.ftc.gov/opa/2009/10/endortest.shtm) and in compliance
with the Native Ad Guides (available at https://www.ftc.gov/tips-
advice/business-center/guidance/native-advertising-guide-businesses),
and the FTC's “Dot Com Disclosures” Guidelines (available at:
http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf)
(collectively, the “FTC Guidelines”).
In compliance with the FTC Guidelines, as noted above, you must
clearly and conspicuously identify that products purchased through the
Special Links are commission eligible on all pages and social media
posts where a Special Link is included by you or where you otherwise
advertise or promote Hyland’s Naturals products. You shall include a
clear and conspicuous disclosure within any and all pages, blog/posts,
or social media posts where Special Links for our Program are posted
and where a reader or consumer may not understand that the link is a
paid advertisement. You understand and agree that any messaging in
contravention of the FTC Guidelines may result in your immediate
termination and removal from the Program. In addition, you must
include a disclosure that complies with FTC Guidelines where: (a)
disclosures must be made as close as possible to the claims; (b)
disclosures must be made on each page containing a sponsored Special
Link or reference to Hyland’s Naturals (a single statement on your site,
or a separate page with your general disclosure statement is not an
adequate disclosure); (c) disclosures should be placed above the
fold/scroll; scrolling should not be necessary to find the disclosure; and
(d) social media posts must include appropriate hashtags as indicated
above.
The FTC Guidelines, including hashtags and disclaimer requirements,
are subject to change over time and it’s your responsibility to review
and comply with current guidelines as policies may change over time.
Please regularly review the FTC Guidelines for updates. If you have any
questions about your legal obligations to comply with the FTC
Guidelines, please consult with your legal representative.
2. Order Processing. We will process product orders placed by
customers who follow Special Links from your Site to our Site. We
reserve the right to reject orders that do not comply with any and all
requirements that we periodically may establish. We will be responsible
for all aspects of order processing and fulfillment. Among other things,
we will prepare order forms, process payments, cancellations, and
returns, and handle customer service. Affiliate Network will track sales
made to customers who purchase products using Special Links from
your Site to our Site and will be solely responsible for making available
to you reports summarizing this sales activity through the Affiliate
Network. The form, content and frequency of the reports may vary
from time to time at our discretion. You hereby agree not to disclose
the information contained in these reports to any third party without
prior written consent from Hyland’s Naturals.
3. Referral Fees. We will pay you referral fees on certain product sales
to customers as provided in Section 4. For a product sale to be eligible
to earn a referral fee, the customer must follow a Special Link from
your Site to our Site, select and purchase the product using our online
ordering system, accept delivery of the product at the designated
shipping destination, and remit full payment to us (“Qualifying
Purchase”). We will not, however, pay referral or other fees on any
products that are subsequently purchased after the customer has
reentered the Hyland’s Naturals Site other than through a Special Link
from your Site, even if the customer previously followed a Special Link
from your Site to the Hyland’s Naturals Site. Purchases made with
Hyland’s Naturals gift cards are not eligible to earn referral fees. You
may not purchase products during sessions initiated through the
Special Links on your Site for your own use, resale, or commercial use
of any kind. This includes orders for customers or on behalf of
customers or orders for products to be used by you or your friends,
relatives or associates in any manner. Such purchases may result, in
our sole discretion, in the withholding of referral fees or the
termination of this Agreement.
4. Referral Fee Schedule. You agree and acknowledge that the referral
fees you earn pursuant to Section 3 will be in amounts established by
us and posted in a schedule on the Affiliate Network Site (“Referral Fee
Schedule”) together with the application materials. The Referral Fee
Schedule is incorporated into this Agreement by reference. We reserve
the right to modify the Referral Fee Schedule at any time in our sole
discretion upon prior notice to you. By continuing to participate in the
Program after we modify the Referral Fee Schedule, you agree to be
bound by any such modification. If the modifications are not acceptable
to you, your only recourse is to cease your participation in the Program.
Referral fees shall be limited to a maximum of 8% per item unless
otherwise provided in the Referral Fee Schedule. The referral fees shall
be calculated as a percentage of “qualifying revenues,” which are
revenues derived by us from Qualifying Purchases, excluding revenues
derived from and costs associated with shipping, handling, gift-
wrapping, taxes, service charges, credit card processing fees, bad debt
and promotional discounts as advertised.
5. Referral Fee Payment. We will pay referral fees on a monthly basis to
the operator of the Affiliate Network and the Affiliate Network operator
will pay you. Approximately 60 days following the end of each calendar
month, Affiliate Network will send you a check for the referral fees
earned on net sales of products that were shipped during that month,
less any taxes that we are required by law to withhold. However, if the
referral fees payable to you for any calendar month are less than
$25.00 , we will hold those referral fees until the total amount due is at
least $25.00 or until this Agreement is terminated. If a product that
generated a referral fee is returned by the customer, we will deduct the
corresponding referral fee from your next monthly payment. If there is
no subsequent payment, we will send you a bill for the returned
product referral fee and you agree to pay such bill within thirty (30)
days of invoice. We reserve the right at our discretion to cancel or
reverse any payment, even if it has been previously confirmed by us, as
a result of any mistake or error, including any mistaken pricing or other
error. We reserve the right in our sole and absolute discretion to
withhold payment of any referral fees owed to you if we have any
suspicion or actual evidence of electronic or non-electronic tampering
with any portion of the Program, or if a computer virus, bug,
unauthorized intervention, fraud, technical difficulties, or failures
compromise or corrupt or affect the administration, integrity or
security of the Program by you or a third party. You will be solely
responsible for reporting and paying all income and other related taxes
associated with the referral fees paid to you and for all compensation
benefits and taxes to or for your employees and any third parties
engaged by you in connection with your participation in the Program.
You will defend, indemnify and hold us harmless in all respects with
respect to any taxes, penalties, damages, costs and expenses relating
to our payments made to you hereunder without withholding of taxes.
6. Policies and Pricing. Customers who buy products through this
Program will be deemed to be our customers. Accordingly, all Hyland’s
Naturals rules, policies and operating procedures concerning customer
orders, customer service, and product sales will apply to those
customers. We may change our policies and operating procedures at
any time. For example, we will determine the prices to be charged for
products sold under the Program in accordance with our own pricing
policies. Product prices and availability may vary from time to time. We
will use commercially reasonable efforts to present accurate
information, but we cannot guarantee the availability or price of any
particular product.
7. Hyland’s Naturals Marks. The trademarks, trade names, designs and
logos made available to you through the Affiliate Network Site, that are
used or owned by Hyland’s Naturals or any affiliated entity (“Hyland’s
Naturals Marks”) are proprietary marks of Hyland’s Naturals Subject to
the terms and conditions of this Agreement, Hyland’s Naturals grants
you a limited, non-exclusive, nontransferable, revocable license to use
the Hyland’s Naturals Marks during the term of this Agreement solely
as provided in Section 1. You agree that you will not (a) modify the
Hyland’s Naturals Marks, or (b) cause any act or do anything that would
impair our rights in the Hyland’s Naturals Marks or damage the
reputation for quality inherent in the Hyland’s Naturals Marks. Further,
you acknowledge and agree that (a) your use of the Hyland’s Naturals
Marks does not convey to you any right, title or interest in any
intellectual property rights of Hyland's Naturals, (b) you may not
contest the Hyland’s Naturals Marks, or register or attempt to register
in any jurisdiction any Hyland’s Naturals Mark or any confusingly similar
mark or trade name; and (c) your use of the Hyland’s Naturals Marks,
including all goodwill associated with such use, shall inure solely to
Hyland's Naturals. You agree to abide by all policies regarding
trademark usage as established from time to time by Hyland’s Naturals
at its discretion and to cease any improper use of the Hyland’s Naturals
Marks upon Hyland’s Naturals request.
8. Customer and Sales Information. You agree the we will own all right,
title and interest (including all intellectual property rights) in and to all
information that is created or collected in connection with this
Agreement, including, without limitation, (a) any contact information
collected from any customer who enters the Hyland’s Naturals Site
from a link from your Site (“Affiliate Customers”) and (b) any
information regarding click-through rates or product purchases by
Affiliate Customers (“Sales Information”). Subject to the terms and
conditions of this Agreement, Hyland’s Naturals grants you a limited
worldwide, non-exclusive royalty-free license to use the Sales
Information to the extent necessary to fulfill your obligations under this
Agreement or for your internal research purposes. You agree not to
disclose any Sales Information or Affiliate Customer contact
information to any third party without Hyland’s Naturals prior written
approval. You agree not to send Affiliate Customers e-mail
communications promoting your Site as an affiliate of Hyland’s Naturals
or otherwise unless granted previous written approval by Hyland’s
Naturals You agree to maintain and adhere to your privacy policy, as
posted and updated on your Site.
9. Responsibility for Your Site. You are solely responsible for the
development, operation and maintenance of your Site and for all
materials that appear on your Site, including, but not limited to (a) the
Special Links; (b) ensuring all banners, text links, individual product
links and search box ads (hereinafter the “Creatives”) are up to date
with what is offered in the Hyland’s Naturals Site; (c) ensuring all
Creatives work effectively and link properly to the Hyland’s Naturals
Site; (d) the accuracy and appropriateness of materials posted on your
Site (including but not limited to all product-related materials), (e)
ensuring that materials posted on your Site do not violate or infringe
upon the rights of any third party (including, but not limited to,
copyrights, trademarks, privacy or other personal or proprietary rights);
(f) ensuring that materials posted on your Site are not libelous or
unlawful, are not pornographic or obscene, do not promote violence or
hate speech, or discrimination based on race, sex, religion, nationality,
disability, sexual orientation or age and do not violate any provision of
this Agreement; (g) ensuring that your Site and the materials posted
thereon do not contain viruses, Trojan horses, worms, time bombs,
cancelbots or other similar harmful or deleterious programming
routines; and (h) compliance with all applicable national, state, regional
and local laws and regulations, including those regarding unfair
competition, anti-discrimination or false advertising. We disclaim all
liability for the matters stated in this Section.
9. Further, you agree to indemnify and hold us, our affiliates, licensees
and licensors, and each of our respective directors, officers, employees,
agents, shareholders and members, harmless from all claims, damages,
liabilities, losses, costs and expenses (including, without limitation,
attorneys’ fees) relating to (a) the content development, operation,
maintenance and contents of your Site, (b) any breach or alleged
breach of your obligations under this Agreement, (c) any violation of
any law, rule, regulation, ordinance or applicable policy of or agreement
in connection with the Program or your obligations or services
hereunder; and/or (d) you or your employees’ negligence or willful
misconduct.
10. Improper Activities. You agree not to use any Hyland’s Naturals
trademarks or product designations, or variations or misspellings
thereof, in any manner not expressly authorized by this Agreement,
including in domain names, in emails or newsletters or in hidden or live
text that is meant to attract search engine spiders. You may not
purchase any keywords on search sites related to Hyland’s Naturals or
any variation thereof. You may not launch the Hyland’s Naturals Site
directly from search engine listings or from your Site unless the visitor
clicks through a Hyland’s Naturals banner, logo, link or product. You
may not use “official site” in ad copy, registration/trademark symbols,
brand URLs or variations as display URLs, or price points in ad copy.
You agree not to associate Hyland’s Naturals with “discount” terms like:
coupon(s), replicates, knock-offs of low prices, bargains, discounts,
cheap, deals, inexpensive, wholesale, sale, thrifty, etc. The submission
of Hyland’s Naturals data feeds to Google Shopping and or any other
comparison engines is prohibited. You may not utilize in connection
with your Site or the promotion of our Site: (a) any framing technology
that frames the Hyland’s Naturals Site; (b) any software that gathers
information through the customer’s Internet connection without his or
her knowledge; (c) any software or action that violates any applicable
federal, state or local laws, including without limitation, laws which
prohibit a person or company from (i) installing spyware on another
person’s computer, (ii) causing spyware to be installed on another
person’s computer, or (iii) using a context based triggering mechanism
to display an advertisement that partially or wholly covers or obscures
paid advertising or other content on an Internet website in a way that
interferes with a user’s ability to view the Internet website, or (d)
browser-embedded contextual targeting applications or other
applications which serve “Advertising” on Hyland’s Naturals competitors
websites or on any other website other than your Site. “Advertising”
means (i) pop-up ads and pop-unders, (ii) in-browser ads, and (iii)
highlighting of website content and redirecting to websites with similar
content, regardless of whether any such Advertising is served directly
by you or is provided or purchased from a third-party purchaser; or (e)
any “opt-out downloads”. An “opt-out download” is any software,
program, script, tool or element that would automatically download to
a user’s computer or that would become operative when the user
accesses the Internet unless the user takes affirmative action to
prevent the download.
11. Term of the Agreement; Termination. The term of this Agreement
will begin upon our acceptance of your Program application and will
end when terminated by either of us. Either you or Hyland’s Naturals
may terminate this Agreement at any time and for any reason, with or
without cause, by giving the other party written or electronic notice of
termination. You are only eligible to earn referral fees on sales
occurring during the term of this Agreement, and fees earned through
the date of termination will remain payable only if the related orders
are not canceled or returned. We may withhold your final payment for
a reasonable time to ensure that the correct amount is paid. Upon
termination of this Agreement, (a) all licenses hereunder shall
terminate, (b) you will immediately remove any links, Hyland’s Naturals
Marks, and other Hyland’s Naturals intellectual property or brand
features from your Site, (c) Hyland’s Naturals shall immediately remove
any of your logos, marks, and brand features from the Hyland’s
Naturals site, and (d) Sections 7 through 24 will survive such
termination. Hyland’s Naturals may withhold referral fees at
termination if Hyland's Naturals, in its sole discretion, believes explicit
provisions of this Agreement have been breached and such referral
fees were earned in violation of this Agreement. In addition to the right
to terminate this Agreement, Hyland’s Naturals shall be entitled, in
addition to any and all remedies of law, to seek damages for breach of
this Agreement, including, injunctive relief, punitive damages, and/or
refund of the fees and other payments made pursuant to the terms of
this agreement. Hyland’s Naturals may, in its sole discretion, suspend
your account and/or withhold referral fees if it determined that you
have engaged in any acts to improperly generate referral fees or are in
violation of any of the prohibitions or conditions contained herein.
12. Modification. We reserve the right to change or modify the terms
and conditions contained in this Agreement, at any time and in our sole
discretion. Any changes or modifications will be effective upon posting
of the revisions and notice of such changes to the Hyland’s Naturals
Site and will be indicated by a new “last updated” date at the top of this
Agreement. Hyland’s Naturals may also deliver notice of the changes by
any of the following methods: (a) by posting a change notice or a new
agreement on the Affiliate Network Site; or (b) by giving you notice of
the change or modification via email or through the Affiliate Network.
Modifications may include, for example, changes in the scope of
available referral fees, referral fee schedules, payment procedures, and
Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR
ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR
CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR
POSTING OF A CHANGE NOTICE OR NEW AGREEMENT WILL
CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
13. Relationship of Parties. The parties to this Agreement are
independent contractors, and nothing in this Agreement will create any
partnership, joint venture, agency, franchise, sales representative, or
employment relationship between us. You will have no authority to
make or accept any offers or representations on our behalf. You agree
not to make any statement, whether on your Site or otherwise, that
reasonably would contradict anything in this Section.
14. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAWS, YOU AGREE THAT HYLAND’S NATURALS, ITS
AFFILIATES AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
SHAREHOLDERS, LICENSEES, LICENSORS, AND AGENTS WILL NOT BE
LIABLE FOR INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS
AGREEMENT, THE PROGRAM OR THE AFFILIATE NETWORK, EVEN IF WE
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, THE AGGREGATE LIABILITY OF HYLAND’S NATURALS, ITS
AFFILIATES AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
SHAREHOLDERS, LICENSEES, LICENSORS, AND AGENTS ARISING WITH
RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED
THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS
AGREEMENT. YOU AGREE THAT ALL CLAIMS MADE HEREUNDER BY YOU
AGAINST US SHALL BE MADE WITHIN 180 DAYS OF THE ACT OR
OMISSION, WHICH FORMS THE BASIS OF SUCH CLAIMS.
SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY SO NOT
ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU
ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS,
EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM
AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES
HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS,
EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH
DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS
AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY
DIFFERENT.
15. Disclaimers. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR
REPRESENTATIONS WITH RESPECT TO AFFILIATE NETWORK, THE
PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM
(INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS,
MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED
WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING,
OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT
THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR-
FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY
INTERRUPTIONS OR ERRORS OR TERMINATION OF ANY SERVICES,
PRODUCTS OR THIS AGREEMENT, INCLUDING ANY LOSS OF REVENUE,
PROFITS OR DATA.
16. Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE
READ THIS AGREEMENT AND AGREE TO ALL TERMS AND CONDITIONS
IN THIS AGREEMENT. You understand that we may at any time (directly
or indirectly) solicit customer referrals on terms that may differ from
those contained in this Agreement or operate Sites that are similar to
or compete with your Site. You have independently evaluated the
desirability of participating in the Program and are not relying on any
representation, guarantee or statement other than as set forth in this
Agreement.
17. Assignment and Successors. You may not assign this Agreement, by
operation of law or otherwise, without our prior written consent and
any purported assignment in contravention of this provision shall be
null and void ab initio. Subject to that restriction, this Agreement will be
binding on, inure to the benefit of, and be enforceable against, the
parties and their respective successors and assigns.
18. Scope of Agreement and Severability. This Agreement and the
Referral Fee Schedule constitutes the entire agreement and
understanding between us with respect to the subject matter of this
Agreement and supersedes all prior or contemporaneous written or
oral agreements or representations between us. The provisions of this
Agreement are independent of and separable from each other, and no
provision shall be affected or rendered invalid or unenforceable by
virtue of the fact that for any reason any other provision may be invalid
or unenforceable in whole or in part.
19. Injunctive Relief. You expressly agree that your violation of this
Agreement, including any violation of our proprietary rights, could
cause irreparable harm to Hyland’s Naturals and that a remedy at law
would be inadequate. Therefore, in addition to any and all remedies
available at law, Hyland’s Naturals will be entitled to seek an injunction
or other equitable remedies in all legal proceedings in the event of any
threatened or actual violation of any or all of the provisions hereof.
20. Attorneys’ Fees. In the event any action is commenced to construe
or enforce any provision of this Agreement, the prevailing party, in
addition to all other amounts such party shall be entitled to receive
from the other party, shall be entitled to receive its reasonable
attorneys’ fees and costs incurred in bringing such action.
21. Notices. Any notices required or permitted by this Agreement shall
be delivered to the other party through the Affiliate Network. Notice
shall be deemed given one business day after such notice was sent via
the Affiliate Network by the sending party.
22. Governing Law, Jurisdiction, and Venue. This Agreement will be
governed by the laws of the United States and the State of California,
without reference to rules governing choice of laws. Any action relating
to this Agreement must be brought only in the federal or state courts
serving Los Angeles, California, and you irrevocably consent to the
jurisdiction of such courts.
23. Waiver. Our failure to enforce your strict performance of any
provision of this Agreement will not constitute a waiver of our right to
subsequently enforce such provision or any other provision of this
Agreement. The failure of either party to enforce any right or remedy
shall not be deemed a waiver of said right or remedy.
24. Publicity. We do not permit you to utilize media releases of any kind
to publicize your business relationship with us. You shall not use any
Hyland’s Naturals Mark, trademark, service mark, logo or any other
information which identifies Hyland’s Naturals in any sales, marketing
and publicity activities and/or materials.
No TM+ bidding without explicit approval.
Last updated: November, 2023
This Affiliate Agreement (“Agreement”) is a legally binding contract that
contains the complete terms and conditions that apply to an
individual’s or entity’s participation in the Hyland’s Naturals Affiliate
Program (“Program”), which is operated through an affiliate network
(“Affiliate Network”) that is currently run by Shareasale.com
(“Shareasale.com”). This Agreement is made and entered into by
Hyland's Consumer Health, Inc. (“Hyland’s Naturals) and you, the
applicant. As used in this Agreement, “we”, “us” or “our” means Hyland’s
Naturals and “you” or “your” means the applicant. If you are entering
into this Agreement not as an individual but on behalf of your company,
then “you” means your company, and you hereby represent and
warrant that you have the authority to bind your company to this
Agreement. “Site” means a World Wide Web site and, depending on the
context, refers either to (a) the Hyland’s Naturals site located at the URL
https://hylands.com/ or such other site as Hyland’s Naturals might
designate, or (b) the site that you will link to our Site and which you
have identified in your Program application. By participating in the
Program or clicking an “I accept” or similar button or doing any other
act to indicate your consent, you represent that you have read,
understand, and agree to be bound by the terms of this Agreement. To
begin the enrollment process, you need to submit a complete Program
application at the Affiliate Network operator’s website (currently
located at www.shareasale.com) (“Affiliate Network Site”). We will
evaluate your application and will notify you through the Affiliate
Network Site of your acceptance or rejection. If we do not notify you
that you are accepted to participate in the Program within thirty (30)
days from your application, your application is considered to be
rejected. We may reject your application for any reason, including, but
not limited to our determination, in our sole discretion, that your Site is
unsuitable for the Program. Unsuitable sites include, but are not limited
to, those that: (a) contain or link to nudity or pornography or promote
sexually explicit materials; (b) promote violence; (c) promote
discrimination based on race, sex, religion, nationality, disability, sexual
orientation or age; (d) promote illegal activities; (e) infringe our
intellectual property rights or those of any third party or otherwise
violate the rights of any third party; (f) contain, in our sole judgment,
material that is defamatory, fraudulent, or harassing to us or any third
party; (g) promote the use of any pyramid or similar schemes; (h)
contain software downloads that potentially enable diversions of
commissions from other sites, (i) include any of our marks or product
designations, including “Hyland’s naturals”, “Hylands” “hylandsnaturals”,
“hylands.com”, “Cold and Cough”, variations or misspellings thereof, in
their domain names; (j) have a clear stated mission that is in part to
support religious or politically active causes, as represented on the
homepage or one of the key landing pages; or (k) distribute content to
third parties. If a site distributes content to third parties and the
operator of it is willing to give Hyland’s Naturals a list, for approval, of
all sites, which currently feature the content, and written notice upon
acceptance of any new distribution partnerships, the site may be
accepted into the Program. The following terms and conditions will be
effective if and only if we accept your application and will become
effective immediately upon notification of your acceptance into the
Program. By applying to be an affiliate, you agree to be bound and
abide by such terms and conditions.
1. Links on Your Site. To permit accurate tracking, reporting and referral
fee accrual, we will authorize the entity running the Affiliate Network to
give you access on the Affiliate Network Site to special “tagged” link
formats (“Special Links”) to be used in all links between your Site and
our Site. You must ensure that each of the links between your Site and
our Site properly uses such Special Link formats. We will not be liable to
you with respect to any failure by you to use Special Links, including to
the extent that such failure may result in any reduction of amounts that
would otherwise be paid to you pursuant to this Agreement. Each
Special Link, as viewed by a customer, will be in the form of a Hyland’s
Naturals logo, text link or product provided by us. The Hyland’s
Naturals logo for each Special Link will be served by Affiliate Network
servers, which can only be accessed by using the special “tagged” link
formats. You agree only to use the Hyland’s Naturals logos and images
provided by us via the Affiliate Network Site, and you further agree not
to obtain or use Hyland’s Naturals logos or images from any other
source. Your Site’s title and other trademarks and linking logos must
appear at least as prominently as the Hyland’s Naturals logo that is
used to create the Special Link.
As a condition of your participation in the Program, you must comply
with all laws, rules and regulations applicable to your participation in
the Program, including for example, the requirement to make proper
and appropriate disclosures in compliance with the Endorsement and
Testimonial Guidelines published by the United States Federal Trade
Commission (available at
http://www.ftc.gov/opa/2009/10/endortest.shtm) and in compliance
with the Native Ad Guides (available at https://www.ftc.gov/tips-
advice/business-center/guidance/native-advertising-guide-businesses),
and the FTC's “Dot Com Disclosures” Guidelines (available at:
http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf)
(collectively, the “FTC Guidelines”).
In compliance with the FTC Guidelines, as noted above, you must
clearly and conspicuously identify that products purchased through the
Special Links are commission eligible on all pages and social media
posts where a Special Link is included by you or where you otherwise
advertise or promote Hyland’s Naturals products. You shall include a
clear and conspicuous disclosure within any and all pages, blog/posts,
or social media posts where Special Links for our Program are posted
and where a reader or consumer may not understand that the link is a
paid advertisement. You understand and agree that any messaging in
contravention of the FTC Guidelines may result in your immediate
termination and removal from the Program. In addition, you must
include a disclosure that complies with FTC Guidelines where: (a)
disclosures must be made as close as possible to the claims; (b)
disclosures must be made on each page containing a sponsored Special
Link or reference to Hyland’s Naturals (a single statement on your site,
or a separate page with your general disclosure statement is not an
adequate disclosure); (c) disclosures should be placed above the
fold/scroll; scrolling should not be necessary to find the disclosure; and
(d) social media posts must include appropriate hashtags as indicated
above.
The FTC Guidelines, including hashtags and disclaimer requirements,
are subject to change over time and it’s your responsibility to review
and comply with current guidelines as policies may change over time.
Please regularly review the FTC Guidelines for updates. If you have any
questions about your legal obligations to comply with the FTC
Guidelines, please consult with your legal representative.
2. Order Processing. We will process product orders placed by
customers who follow Special Links from your Site to our Site. We
reserve the right to reject orders that do not comply with any and all
requirements that we periodically may establish. We will be responsible
for all aspects of order processing and fulfillment. Among other things,
we will prepare order forms, process payments, cancellations, and
returns, and handle customer service. Affiliate Network will track sales
made to customers who purchase products using Special Links from
your Site to our Site and will be solely responsible for making available
to you reports summarizing this sales activity through the Affiliate
Network. The form, content and frequency of the reports may vary
from time to time at our discretion. You hereby agree not to disclose
the information contained in these reports to any third party without
prior written consent from Hyland’s Naturals.
3. Referral Fees. We will pay you referral fees on certain product sales
to customers as provided in Section 4. For a product sale to be eligible
to earn a referral fee, the customer must follow a Special Link from
your Site to our Site, select and purchase the product using our online
ordering system, accept delivery of the product at the designated
shipping destination, and remit full payment to us (“Qualifying
Purchase”). We will not, however, pay referral or other fees on any
products that are subsequently purchased after the customer has
reentered the Hyland’s Naturals Site other than through a Special Link
from your Site, even if the customer previously followed a Special Link
from your Site to the Hyland’s Naturals Site. Purchases made with
Hyland’s Naturals gift cards are not eligible to earn referral fees. You
may not purchase products during sessions initiated through the
Special Links on your Site for your own use, resale, or commercial use
of any kind. This includes orders for customers or on behalf of
customers or orders for products to be used by you or your friends,
relatives or associates in any manner. Such purchases may result, in
our sole discretion, in the withholding of referral fees or the
termination of this Agreement.
4. Referral Fee Schedule. You agree and acknowledge that the referral
fees you earn pursuant to Section 3 will be in amounts established by
us and posted in a schedule on the Affiliate Network Site (“Referral Fee
Schedule”) together with the application materials. The Referral Fee
Schedule is incorporated into this Agreement by reference. We reserve
the right to modify the Referral Fee Schedule at any time in our sole
discretion upon prior notice to you. By continuing to participate in the
Program after we modify the Referral Fee Schedule, you agree to be
bound by any such modification. If the modifications are not acceptable
to you, your only recourse is to cease your participation in the Program.
Referral fees shall be limited to a maximum of 8% per item unless
otherwise provided in the Referral Fee Schedule. The referral fees shall
be calculated as a percentage of “qualifying revenues,” which are
revenues derived by us from Qualifying Purchases, excluding revenues
derived from and costs associated with shipping, handling, gift-
wrapping, taxes, service charges, credit card processing fees, bad debt
and promotional discounts as advertised.
5. Referral Fee Payment. We will pay referral fees on a monthly basis to
the operator of the Affiliate Network and the Affiliate Network operator
will pay you. Approximately 60 days following the end of each calendar
month, Affiliate Network will send you a check for the referral fees
earned on net sales of products that were shipped during that month,
less any taxes that we are required by law to withhold. However, if the
referral fees payable to you for any calendar month are less than
$25.00 , we will hold those referral fees until the total amount due is at
least $25.00 or until this Agreement is terminated. If a product that
generated a referral fee is returned by the customer, we will deduct the
corresponding referral fee from your next monthly payment. If there is
no subsequent payment, we will send you a bill for the returned
product referral fee and you agree to pay such bill within thirty (30)
days of invoice. We reserve the right at our discretion to cancel or
reverse any payment, even if it has been previously confirmed by us, as
a result of any mistake or error, including any mistaken pricing or other
error. We reserve the right in our sole and absolute discretion to
withhold payment of any referral fees owed to you if we have any
suspicion or actual evidence of electronic or non-electronic tampering
with any portion of the Program, or if a computer virus, bug,
unauthorized intervention, fraud, technical difficulties, or failures
compromise or corrupt or affect the administration, integrity or
security of the Program by you or a third party. You will be solely
responsible for reporting and paying all income and other related taxes
associated with the referral fees paid to you and for all compensation
benefits and taxes to or for your employees and any third parties
engaged by you in connection with your participation in the Program.
You will defend, indemnify and hold us harmless in all respects with
respect to any taxes, penalties, damages, costs and expenses relating
to our payments made to you hereunder without withholding of taxes.
6. Policies and Pricing. Customers who buy products through this
Program will be deemed to be our customers. Accordingly, all Hyland’s
Naturals rules, policies and operating procedures concerning customer
orders, customer service, and product sales will apply to those
customers. We may change our policies and operating procedures at
any time. For example, we will determine the prices to be charged for
products sold under the Program in accordance with our own pricing
policies. Product prices and availability may vary from time to time. We
will use commercially reasonable efforts to present accurate
information, but we cannot guarantee the availability or price of any
particular product.
7. Hyland’s Naturals Marks. The trademarks, trade names, designs and
logos made available to you through the Affiliate Network Site, that are
used or owned by Hyland’s Naturals or any affiliated entity (“Hyland’s
Naturals Marks”) are proprietary marks of Hyland’s Naturals Subject to
the terms and conditions of this Agreement, Hyland’s Naturals grants
you a limited, non-exclusive, nontransferable, revocable license to use
the Hyland’s Naturals Marks during the term of this Agreement solely
as provided in Section 1. You agree that you will not (a) modify the
Hyland’s Naturals Marks, or (b) cause any act or do anything that would
impair our rights in the Hyland’s Naturals Marks or damage the
reputation for quality inherent in the Hyland’s Naturals Marks. Further,
you acknowledge and agree that (a) your use of the Hyland’s Naturals
Marks does not convey to you any right, title or interest in any
intellectual property rights of Hyland's Naturals, (b) you may not
contest the Hyland’s Naturals Marks, or register or attempt to register
in any jurisdiction any Hyland’s Naturals Mark or any confusingly similar
mark or trade name; and (c) your use of the Hyland’s Naturals Marks,
including all goodwill associated with such use, shall inure solely to
Hyland's Naturals. You agree to abide by all policies regarding
trademark usage as established from time to time by Hyland’s Naturals
at its discretion and to cease any improper use of the Hyland’s Naturals
Marks upon Hyland’s Naturals request.
8. Customer and Sales Information. You agree the we will own all right,
title and interest (including all intellectual property rights) in and to all
information that is created or collected in connection with this
Agreement, including, without limitation, (a) any contact information
collected from any customer who enters the Hyland’s Naturals Site
from a link from your Site (“Affiliate Customers”) and (b) any
information regarding click-through rates or product purchases by
Affiliate Customers (“Sales Information”). Subject to the terms and
conditions of this Agreement, Hyland’s Naturals grants you a limited
worldwide, non-exclusive royalty-free license to use the Sales
Information to the extent necessary to fulfill your obligations under this
Agreement or for your internal research purposes. You agree not to
disclose any Sales Information or Affiliate Customer contact
information to any third party without Hyland’s Naturals prior written
approval. You agree not to send Affiliate Customers e-mail
communications promoting your Site as an affiliate of Hyland’s Naturals
or otherwise unless granted previous written approval by Hyland’s
Naturals You agree to maintain and adhere to your privacy policy, as
posted and updated on your Site.
9. Responsibility for Your Site. You are solely responsible for the
development, operation and maintenance of your Site and for all
materials that appear on your Site, including, but not limited to (a) the
Special Links; (b) ensuring all banners, text links, individual product
links and search box ads (hereinafter the “Creatives”) are up to date
with what is offered in the Hyland’s Naturals Site; (c) ensuring all
Creatives work effectively and link properly to the Hyland’s Naturals
Site; (d) the accuracy and appropriateness of materials posted on your
Site (including but not limited to all product-related materials), (e)
ensuring that materials posted on your Site do not violate or infringe
upon the rights of any third party (including, but not limited to,
copyrights, trademarks, privacy or other personal or proprietary rights);
(f) ensuring that materials posted on your Site are not libelous or
unlawful, are not pornographic or obscene, do not promote violence or
hate speech, or discrimination based on race, sex, religion, nationality,
disability, sexual orientation or age and do not violate any provision of
this Agreement; (g) ensuring that your Site and the materials posted
thereon do not contain viruses, Trojan horses, worms, time bombs,
cancelbots or other similar harmful or deleterious programming
routines; and (h) compliance with all applicable national, state, regional
and local laws and regulations, including those regarding unfair
competition, anti-discrimination or false advertising. We disclaim all
liability for the matters stated in this Section.
9. Further, you agree to indemnify and hold us, our affiliates, licensees
and licensors, and each of our respective directors, officers, employees,
agents, shareholders and members, harmless from all claims, damages,
liabilities, losses, costs and expenses (including, without limitation,
attorneys’ fees) relating to (a) the content development, operation,
maintenance and contents of your Site, (b) any breach or alleged
breach of your obligations under this Agreement, (c) any violation of
any law, rule, regulation, ordinance or applicable policy of or agreement
in connection with the Program or your obligations or services
hereunder; and/or (d) you or your employees’ negligence or willful
misconduct.
10. Improper Activities. You agree not to use any Hyland’s Naturals
trademarks or product designations, or variations or misspellings
thereof, in any manner not expressly authorized by this Agreement,
including in domain names, in emails or newsletters or in hidden or live
text that is meant to attract search engine spiders. You may not
purchase any keywords on search sites related to Hyland’s Naturals or
any variation thereof. You may not launch the Hyland’s Naturals Site
directly from search engine listings or from your Site unless the visitor
clicks through a Hyland’s Naturals banner, logo, link or product. You
may not use “official site” in ad copy, registration/trademark symbols,
brand URLs or variations as display URLs, or price points in ad copy.
You agree not to associate Hyland’s Naturals with “discount” terms like:
coupon(s), replicates, knock-offs of low prices, bargains, discounts,
cheap, deals, inexpensive, wholesale, sale, thrifty, etc. The submission
of Hyland’s Naturals data feeds to Google Shopping and or any other
comparison engines is prohibited. You may not utilize in connection
with your Site or the promotion of our Site: (a) any framing technology
that frames the Hyland’s Naturals Site; (b) any software that gathers
information through the customer’s Internet connection without his or
her knowledge; (c) any software or action that violates any applicable
federal, state or local laws, including without limitation, laws which
prohibit a person or company from (i) installing spyware on another
person’s computer, (ii) causing spyware to be installed on another
person’s computer, or (iii) using a context based triggering mechanism
to display an advertisement that partially or wholly covers or obscures
paid advertising or other content on an Internet website in a way that
interferes with a user’s ability to view the Internet website, or (d)
browser-embedded contextual targeting applications or other
applications which serve “Advertising” on Hyland’s Naturals competitors
websites or on any other website other than your Site. “Advertising”
means (i) pop-up ads and pop-unders, (ii) in-browser ads, and (iii)
highlighting of website content and redirecting to websites with similar
content, regardless of whether any such Advertising is served directly
by you or is provided or purchased from a third-party purchaser; or (e)
any “opt-out downloads”. An “opt-out download” is any software,
program, script, tool or element that would automatically download to
a user’s computer or that would become operative when the user
accesses the Internet unless the user takes affirmative action to
prevent the download.
11. Term of the Agreement; Termination. The term of this Agreement
will begin upon our acceptance of your Program application and will
end when terminated by either of us. Either you or Hyland’s Naturals
may terminate this Agreement at any time and for any reason, with or
without cause, by giving the other party written or electronic notice of
termination. You are only eligible to earn referral fees on sales
occurring during the term of this Agreement, and fees earned through
the date of termination will remain payable only if the related orders
are not canceled or returned. We may withhold your final payment for
a reasonable time to ensure that the correct amount is paid. Upon
termination of this Agreement, (a) all licenses hereunder shall
terminate, (b) you will immediately remove any links, Hyland’s Naturals
Marks, and other Hyland’s Naturals intellectual property or brand
features from your Site, (c) Hyland’s Naturals shall immediately remove
any of your logos, marks, and brand features from the Hyland’s
Naturals site, and (d) Sections 7 through 24 will survive such
termination. Hyland’s Naturals may withhold referral fees at
termination if Hyland's Naturals, in its sole discretion, believes explicit
provisions of this Agreement have been breached and such referral
fees were earned in violation of this Agreement. In addition to the right
to terminate this Agreement, Hyland’s Naturals shall be entitled, in
addition to any and all remedies of law, to seek damages for breach of
this Agreement, including, injunctive relief, punitive damages, and/or
refund of the fees and other payments made pursuant to the terms of
this agreement. Hyland’s Naturals may, in its sole discretion, suspend
your account and/or withhold referral fees if it determined that you
have engaged in any acts to improperly generate referral fees or are in
violation of any of the prohibitions or conditions contained herein.
12. Modification. We reserve the right to change or modify the terms
and conditions contained in this Agreement, at any time and in our sole
discretion. Any changes or modifications will be effective upon posting
of the revisions and notice of such changes to the Hyland’s Naturals
Site and will be indicated by a new “last updated” date at the top of this
Agreement. Hyland’s Naturals may also deliver notice of the changes by
any of the following methods: (a) by posting a change notice or a new
agreement on the Affiliate Network Site; or (b) by giving you notice of
the change or modification via email or through the Affiliate Network.
Modifications may include, for example, changes in the scope of
available referral fees, referral fee schedules, payment procedures, and
Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR
ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR
CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR
POSTING OF A CHANGE NOTICE OR NEW AGREEMENT WILL
CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
13. Relationship of Parties. The parties to this Agreement are
independent contractors, and nothing in this Agreement will create any
partnership, joint venture, agency, franchise, sales representative, or
employment relationship between us. You will have no authority to
make or accept any offers or representations on our behalf. You agree
not to make any statement, whether on your Site or otherwise, that
reasonably would contradict anything in this Section.
14. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAWS, YOU AGREE THAT HYLAND’S NATURALS, ITS
AFFILIATES AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
SHAREHOLDERS, LICENSEES, LICENSORS, AND AGENTS WILL NOT BE
LIABLE FOR INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS
AGREEMENT, THE PROGRAM OR THE AFFILIATE NETWORK, EVEN IF WE
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
FURTHER, THE AGGREGATE LIABILITY OF HYLAND’S NATURALS, ITS
AFFILIATES AND OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES,
SHAREHOLDERS, LICENSEES, LICENSORS, AND AGENTS ARISING WITH
RESPECT TO THIS AGREEMENT AND THE PROGRAM WILL NOT EXCEED
THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS
AGREEMENT. YOU AGREE THAT ALL CLAIMS MADE HEREUNDER BY YOU
AGAINST US SHALL BE MADE WITHIN 180 DAYS OF THE ACT OR
OMISSION, WHICH FORMS THE BASIS OF SUCH CLAIMS.
SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY SO NOT
ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU
ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS,
EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM
AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES
HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS,
EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH
DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS
AND CONDITIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY
DIFFERENT.
15. Disclaimers. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR
REPRESENTATIONS WITH RESPECT TO AFFILIATE NETWORK, THE
PROGRAM OR ANY PRODUCTS SOLD THROUGH THE PROGRAM
(INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS,
MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED
WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING,
OR TRADE USAGE). IN ADDITION, WE MAKE NO REPRESENTATION THAT
THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR-
FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY
INTERRUPTIONS OR ERRORS OR TERMINATION OF ANY SERVICES,
PRODUCTS OR THIS AGREEMENT, INCLUDING ANY LOSS OF REVENUE,
PROFITS OR DATA.
16. Independent Investigation. YOU ACKNOWLEDGE THAT YOU HAVE
READ THIS AGREEMENT AND AGREE TO ALL TERMS AND CONDITIONS
IN THIS AGREEMENT. You understand that we may at any time (directly
or indirectly) solicit customer referrals on terms that may differ from
those contained in this Agreement or operate Sites that are similar to
or compete with your Site. You have independently evaluated the
desirability of participating in the Program and are not relying on any
representation, guarantee or statement other than as set forth in this
Agreement.
17. Assignment and Successors. You may not assign this Agreement, by
operation of law or otherwise, without our prior written consent and
any purported assignment in contravention of this provision shall be
null and void ab initio. Subject to that restriction, this Agreement will be
binding on, inure to the benefit of, and be enforceable against, the
parties and their respective successors and assigns.
18. Scope of Agreement and Severability. This Agreement and the
Referral Fee Schedule constitutes the entire agreement and
understanding between us with respect to the subject matter of this
Agreement and supersedes all prior or contemporaneous written or
oral agreements or representations between us. The provisions of this
Agreement are independent of and separable from each other, and no
provision shall be affected or rendered invalid or unenforceable by
virtue of the fact that for any reason any other provision may be invalid
or unenforceable in whole or in part.
19. Injunctive Relief. You expressly agree that your violation of this
Agreement, including any violation of our proprietary rights, could
cause irreparable harm to Hyland’s Naturals and that a remedy at law
would be inadequate. Therefore, in addition to any and all remedies
available at law, Hyland’s Naturals will be entitled to seek an injunction
or other equitable remedies in all legal proceedings in the event of any
threatened or actual violation of any or all of the provisions hereof.
20. Attorneys’ Fees. In the event any action is commenced to construe
or enforce any provision of this Agreement, the prevailing party, in
addition to all other amounts such party shall be entitled to receive
from the other party, shall be entitled to receive its reasonable
attorneys’ fees and costs incurred in bringing such action.
21. Notices. Any notices required or permitted by this Agreement shall
be delivered to the other party through the Affiliate Network. Notice
shall be deemed given one business day after such notice was sent via
the Affiliate Network by the sending party.
22. Governing Law, Jurisdiction, and Venue. This Agreement will be
governed by the laws of the United States and the State of California,
without reference to rules governing choice of laws. Any action relating
to this Agreement must be brought only in the federal or state courts
serving Los Angeles, California, and you irrevocably consent to the
jurisdiction of such courts.
23. Waiver. Our failure to enforce your strict performance of any
provision of this Agreement will not constitute a waiver of our right to
subsequently enforce such provision or any other provision of this
Agreement. The failure of either party to enforce any right or remedy
shall not be deemed a waiver of said right or remedy.
24. Publicity. We do not permit you to utilize media releases of any kind
to publicize your business relationship with us. You shall not use any
Hyland’s Naturals Mark, trademark, service mark, logo or any other
information which identifies Hyland’s Naturals in any sales, marketing
and publicity activities and/or materials.