HABA USA
Program Terms
HABA USA AFFILIATE MARKETING PROGRAM AGREEMENT
This Affiliate Marketing Program Agreement (the "Agreement") contains the terms and conditions that apply to your participation in the HABA USA Affiliate Marketing Program (the "Program") the terms of which Program are set forth herein.
Please read this Agreement carefully. By participating in the Program, you represent that you ("Affiliate" or "you" or "your") have read, fully understand and agree to the terms of this Agreement with Habermaass Corporation, Inc,. doing business as HABA USA, HABAusa.com ("HABA" or “HABA USA” or "we" or "us" or "our") in the State of New York, USA. In addition, if this Agreement is being executed on behalf of a legal entity, you represent and warrant that you are authorized to legally bind that entity to this Agreement. If you do not agree to these terms, do not agree to same and do not apply for or participate in the Program. For the sake of clarity, the Program is in place to target only purchasers located in the United States of America, and is not associated with any other company other than HABA USA (including its parent and/or affiliate in Europe which is not a party to this Agreement or the Program).
1. ENROLLMENT
In order to apply for enrollment into this Program, you must first sign up as an affiliate of Shareasale.com, Inc., an Illinois corporation ("Shareasale.com") and you must agree to Shareasale.com's Affiliate Service Agreement and other policies, terms and/or conditions which Sharesale.com may require any affiliate to agree to (the "Shareasale.com Agreement"), the terms of which are hereby incorporated by reference.
You may apply to participate in the Program by providing all the information required by Shareasale.com in connection with becoming a Shareasale.com affiliate and by accepting the terms of this Agreement. After receiving your application, we will review your website and application and notify you of your acceptance or rejection into our Program. We reserve the right to accept or reject your application in our sole discretion for any or no reason; however we encourage you to contact us if you feel we have made an incorrect decision. Including all of the domains and websites and other relevant information that you use in your profile and operations will help us make a better decision. If your application is accepted, you may obtain such discounts and affiliate commissions as are offered pursuant to this Program for so long as this Agreement is not terminated.
All information provided in your application must be truthful, accurate and complete. If any such information changes at any time subsequent to submitting your application, you must immediately update such information and keep us informed of any such change. Be advised that we reserve the right to verify all such information at any time. If it is determined, in our sole discretion, that you have failed to provide truthful, accurate and complete information, or to immediately update such information when necessary, we may restrict, suspend, or terminate your account and/or participation in the Program.
2. WEBSITE & OPERATIONAL RESTRICTIONS AND PROHIBITIONS
You and your participating website(s) ("Your Website"), and associated business operations may not:
o Infringe on our or any anyone else's intellectual property, publicity, privacy or other rights.
o Violate any law, rule or regulation.
o Breach this Agreement or the Shareasale.com Agreement.
o Contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, objectionable or contain nudity, pornography or sexually explicit materials.
o Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information.
o Contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website.
o Mislead customers as to the products or services available on Your Website or on the HABA USA website, located at www.HABAusa.com (the "HABA Site").
3. RESPONSIBILITIES AND LINKING TO OUR WEBSITE
o You are solely responsible for the development, operation and maintenance of Your Website and for all the content that appears on your Website. Sole responsibilities include the following, including others contained herein:
? Good faith efforts to promote the HABA products;
? The accuracy, timeliness and appropriateness of content posted on your site (including, among other things, all product-related materials);
? Ensuring that your site does not employ the use of any type of software download or technology that intercepts or re-directs traffic or referral fees to or from any website without the written consent of merchant;
? Ensuring that materials posted on Your Website do not violate or infringe upon the rights of any third party (e.g. including copyrights, trademarks, privacy, or other personal or proprietary rights);
? Notifying us of any relevant feedback or malfunctioning of the links, codes or other problems with your participation in the Program in accordance with the terms of the Agreement.
o Upon acceptance into the Program, links will be made available to you through the Shareasale.com affiliate website. Your acceptance in our Program means you agree to abide by the following:
? You will only use linking code obtained from the Shareasale.com affiliate website without manipulation.
? You will make changes to the linking code immediately upon notice from Sharesale.com or us and/or terminate or discontinue use or display of such earlier link. If links are not so removed or changed as directed by us, we reserve the right to redirect such links as we shall solely determine, with or without compensation to you, and same is a breach of this Agreement.
? All domains that use your affiliate link must be listed in your affiliate profile on the Shareasale.com affiliate website.
? Affiliates may not advertise our products on websites that they do not own, including, for instance, Google Product Search, Amazon, eBay or any comparison shopping engines such as Shopzilla or Pricegrabber.
? Your Website will not in any way copy, resemble, or mirror the look and feel of the HABA Site. You will also not use any means to create the impression that Your Website is the HABA Site or any part of the HABA Site including, without limitation, framing the HABA Site in any manner.
? You may not make any references to HABA or any individual HABA employee, agent, board member, officer, affiliate, representative or agent in any press release, and you may not make any other public communication (written or verbal) regarding the Program, your use of any HABA Intellectual Property, or participation in the Program without first having submitted such material to us and receiving our prior written consent which we may withhold in our sole discretion.
? Any communications to third party must not state they are sent by or on behalf of HABA.
? You may not engage in cookie stuffing or include pop-ups, false or misleading links on Your Website. In addition, wherever possible, you will not attempt to mask the referring URL information (i.e. the page from where the click is originating).
? You may not use redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain.
? You may not create any links that lead the customer to a destination site that is not clearly suggested by the content of the starting site.
? You may not create affiliate tracking links that also contain a tracking link for other referral programs ("Other Referral Programs"). Affiliates are permitted to participate in either the Program or Other Referral Programs but individual links must be specific and exclusive to one of the programs. By participating in this Program, you agree not to claim commission or credit from both the Program and from our Other Referral Programs for the same user.
? You may not use your affiliate links to claim commissions for your own purchases on HABA.com.
? You may not, nor knowingly allow any person to, activate or attempt to activate a link or inflate or attempt to inflate the amount of any sought-after or resulting tracked activities, including but not limited to the use of any method or technology that doe not actually deliver an end user to the destination site associated with such link.
? Our determination as to whether a tracked activity resulted from a link shall be final and binding upon you.
4. PAY-PER-CLICK ("PPC") GUIDELINES
If you are enrolled in this Program and participate in PPC advertising, you must adhere to our PPC guidelines as follows:
o You may not bid on any of our Trademarks, as defined in Section 5, including any variations or misspellings thereof for search or content-based campaigns on Google, MSN, Bing, Yahoo or any other network.
o You may not use our Trademarks in sequence with any other keyword.
o You may not use our Trademarks in your ad title, ad copy, display name or as the display URL.
o You may not direct link to the HABA Site from any PPC ad or use redirects that yield the same result. Affiliates must be directed to an actual page on Your Website only.
o You may not bid in any manner appearing higher than HABA for any search term in position 1-5 in any auction style PPC advertising program.
If you automate your PPC campaigns, it is your responsibility to exclude our Trademarks from your PPC advertising program and we strongly suggest you add our Trademarks as negative keywords. We have a strict no tolerance policy on PPC trademark bidding. If you engage in PPC trademark bidding that uses our Trademarks, we may terminate your participation in the Program immediately.
5. TRADEMARKS
Upon acceptance into the Program, HABA grants you a limited, non-exclusive, revocable, royalty-free right to use the Trademarks of HABA during the term of this Agreement solely for the purpose of generating the sale of HABA products in connection with your participation in the Program, provided that you shall not: (a) use the Trademarks in any manner to communicate or suggest any sponsorship or other connection between HABA and you other than your participation in the Program, and (b) harm or adversely affect the Trademarks or the goodwill associated with the Trademarks. All promotional messaging and materials used by you containing such Trademarks shall be subject to HABA’s prior written approval. Except for the limited license provided in this Agreement, HABA reserves all rights in and to the Trademarks and the goodwill associated therewith. All uses of the Trademarks by you shall inure to the benefit of HABA. You shall not acquire, directly or by implication, any rights or license in the Trademarks except as expressly provided in this Agreement. Your right to use the Trademarks will terminate immediately if you violates any of the terms of this Agreement. For purposes of this Agreement, "Trademarks" means "HABA," "HABA USA" "HABAusa.com, " the HABA logo and such other names, logos, trade names, trademarks, service marks, trade dress, design marks, brands, copyrights in any designs and other copyrightable subject matter, and other identifiers of HABA and its products as HABA may from time to time notify you to be Trademarks within the meaning of this Agreement.
6. PROMOTION CODES, COUPONS AND SPECIAL OFFER GUIDELINES
If you are enrolled in our Program and Your Website promotes coupon codes, you must adhere to our Coupon Guidelines as follows:
o You may ONLY advertise promotion and coupon codes and special offers that are provided to you through the Program or that are displayed to the general viewing public on the HABA Site. Posting any information about how to work around the requirements of a coupon/promotion (i.e. first time customers only) will result in your removal from the Program. Coupons must be displayed in their entirety with the full offer, exclusions, disclaimers, valid expiration date and code.
o You may NOT use any technology that covers up the coupon code and generates an affiliate click by revealing the code(s).
o You may NOT advertise coupon codes obtained from our non-affiliate advertising, customer e-mails, paid search, or any other advertising campaign.
o You may NOT give the appearance that any ongoing offer requires clicking from Your Website in order to redeem. For example, if all items on the site have free shipping over $30, you may not turn this into an offer that infers that the customer must click from Your Website to get this deal.
Additionally, if (a) Your Website ranks on the first page of Google ad results for terms related to HABA combined with the words coupon, coupons, coupon code, promo code, or any similar term and (b) your conversion rate exceeds 25%, then you will be entitled to a lower commission than our standard rate to offset the reduced profitability of orders, which rate is currently 2%.
7. DOMAIN NAMES
Use of any of our Trademarks as part of the domain or sub-domain (for example HABA.website.com or www.HABA-coupons.com) for Your Website is strictly prohibited.
8. ADVERTISING & PUBLICITY
Upon acceptance into the Program, HABA grants to you a nonexclusive, nontransferable license (the "License") to use certain banner advertisements, button links, text links, and/or other graphic or textual material which are subject to our review and consent at any time (the "Promotional Materials") for display and use on Your Website. The term of the License shall expire upon the expiration or termination of this Agreement. You may not subcontract, assign, resell, lease, or sublicense any part of your participation in the Program or run a sub-affiliate program. HABA may make Promotional Materials available to you to display and use on Your Website provided that the manner of display complies with the following requirements:
o You may only use the Promotional Materials to promote the HABA Site (and the products available thereon), and for linking to the HABA Site.
o You shall use only such links to the HABA Site as are provided to you by HABA.
o You shall not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by HABA without consent from HABA. If you wish to alter or otherwise modify the Promotional Materials, you must obtain prior written consent from HABA for such alteration of modification.
o You shall not use the Promotional Materials to promote the HABA Site (and the products available thereon) to customers who are not physically located in the United States.
You shall not create, publish, distribute, or print any written materials that make reference to our Program unless you adhere to the following:
o Abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) with respect to the distribution of any written materials.
o E-mails must be sent on your behalf and must not imply that the e-mail is being sent on behalf of HABA.
o E-mails and any related written materials must first be submitted to HABA for approval prior to being sent or HABA must be sent a copy of the e-mail.
9. REVERSAL & COMMUNICATION POLICY
HABA takes pride in its very low reversal rate, which we attribute to open communication with our affiliates. However, we reserve the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and Program violations as outlined in this Agreement. Additionally, if we ask you for clarification or more information on any orders or clicks that we suspect may be in violation of this Agreement, we expect that you will respond in a timely and honest manner. Below are violations of our communications policy.
o You are not forthcoming, intentionally vague or are found to be lying.
o You are not responsive within a reasonable time period and after multiple attempts to contact with information listed in your network profile.
o You cannot substantiate or validate the source of your traffic to our Program with clear and demonstrable proof.
If any of the above applies, then we reserve the right to reverse orders, set your commission to 0% or suspend you from the Program for the period or orders in question. We know that many violations are a result of automated processes; however it is incumbent upon you to ensure that you have the appropriate checks and balances in place to pro-actively address these issues and adhere to our Program.
10. INTELLECTUAL PROPERTY
HABA retains all right, title, ownership, and interest in the Promotional Materials and Trademarks, including any and all copyright, trademark, or other intellectual property rights therein (the “Intellectual Property”). Nothing in this Agreement shall be construed to grant you any right, title or ownership in the Promotional Materials, or in the underlying intellectual property, other than the right to use the Promotional Materials in accordance with the License, as set forth in Section 8. Upon termination of this Agreement, your right to use any Intellectual Property shall cease immediately.
11. RELATIONSHIP OF PARTIES
This Agreement shall not be construed to create any employment relationship, agency relationship, partnership, or joint venture between HABA and you. You shall provide services for HABA as an independent contractor. You shall have no authority to bind HABA to any agreement, nor shall you be considered to be an agent of HABA, or hold yourself out to be so, in any respect to any individual or entity.
12. AFFILIATE COMMISSIONS
Upon acceptance into the Program, you will be eligible to receive an affiliate commission (the "Commission") for the successful completion of Eligible Purchases. An "Eligible Purchase" occurs when a customer (not you or a third party directly or indirectly working in connection with you) clicks-through the link (supplied by HABA to you) to the HABA Site and successfully completes a purchase for which HABA receives and retains payment, in accordance with the terms of the Shareasale.com Agreement and its terms and policies, as same may be amended from time to time. To be an Eligible Purchase, the sale must be completed by a customer that is physically located in the United States. The current rates of Commission shall be set forth in your Shareasale.com affiliate program located on the Shareasale.com affiliate website. HABA reserves the right to modify the Commission rate from time to time, in its sole discretion. Any change in Commission rates and structure shall be prospective in nature only. Some items, brands, products, categories, or actions may not be eligible for Commission. HABA is responsible for authorizing Commission payments and Shareasale.com will be solely responsible for fulfilling and transferring all Commission payments in accordance with the Shareasale.com Agreement. HABA will be entitled to withhold, deduct and set off from any payments to be made to you hereunder any sums owed by you to HABA, whether in connection with this Agreement (including any breach hereof by you) or otherwise. Shareasale.com shall keep relevant records of orders originating from Your Websites, in accordance with the terms of the Shareasale.com Agreement and its terms and policies, as same may be amended from time to time.
13. DISCLAIMER
YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY WARRANTIES RELATED TO THE PROGRAM OTHER THAN THE EXPRESS STATEMENTS IN THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL HABA BE LIABLE TO YOU UNDER THESE TERMS, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES RELATED TO THE PROGRAM (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR PROFITS OR LOST BUSINESS AND INCLUDING COSTS ASSOCIATED WITH THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HABA’S LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THE PROGRAM OR THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT FOR THE TWELVE MONTH PERIOD PRIOR TO THE ALLEGED LOSS. HABA DOES NOT WARRANT OR GUARANTEE ANY RESULTS OF PARTICIPATION IN THE PROGRAM. ALL PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS HEREUNDER ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. YOU RECOGNIZE THAT THESE DISCLAIMERS ARE AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH HABA WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. HABA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY (TO THE EXTENT PERMITTED BY LAW), REGARDING THE PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF HABA WHATSOEVER.
14. INDEMNIFICATION
You acknowledge that by entering into this Agreement, we do not assume and should not be exposed to the business and operational risks associated with Your Website, your business, or any aspects of the operation or content of Your Website. ACCORDINGLY, YOU AGREE TO AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS HABA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND REPRESENTATIVES FROM ANY AND ALL CLAIMS, DAMAGES, LAWSUITS, ACTIONS, COMPLAINTS, DEMANDS, LIABILITIES, LOSSES, PENALTIES, FINES, INTEREST, GOVERNMENTAL INVESTIGATIONS, JUDGMENTS, SETTLEMENTS, COSTS AND EXPENSES OR OTHER COSTS (INCLUDING REASONABLE ATTORNEYS FEES), THAT DIRECTLY OR INDIRECTLY ARIES OUT OF OR ARE BASED UPON (A) ANY BREACH OF YOUR OBLIGATIONS UNDER THIS AGREEMENT INCLUDING A BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT MADE BY YOU IN THIS AGREEMENT, (B) YOU ENGAGING IN ANY UNLAWFUL ACTIVITY, OR ACTIVITY WHICH FAILS TO COMPLY WITH ANY LAWS, RULES OR REGULATIONS INCLUDING WITHOUT LIMITATION DATA PROTECTION LAWS (DEFINED BELOW) OR RESULTS IN A GOVERNMENTAL INVESTIGATION, (C) YOUR INAPPROPRIATE ACTIONS UNDER THE PROGRAM, (D) YOUR AND YOUR EMPLOYEES AND AGENT’S NEGLIGENCE OR WILLFUL MISCONDUCT, AND/OR (E) THE CONTENT OF YOUR WEBSITE AND SOCIAL MEDIA ACCOUNTS AND ANY ACTUAL OR ALLEGED INFRINGEMENT BY YOU OF ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF ANY PERSON.
HABA may, at its election and in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by you. HABA may participate in the defense of all claims as to which it does not assume defense and control, and you shall not settle any such claim without HABA’s prior written consent.
15. CONFIDENTIALITY
Any information that you are exposed to by virtue of your participation in the Program, which information is not available to the general public, shall be considered to be "Confidential Information." You may not disclose any Confidential Information to any person or entity, except where compelled by law, unless you obtain prior written consent for such disclosure from HABA. You shall not use any Confidential Information except to the extent necessary to fulfill the purposes of this Agreement.
16. TERMINATION
Your participation in the Program shall begin upon your acceptance as an affiliate by HABA and shall end when terminated by either party. Either party may terminate such status at any time, with or without cause, by providing written notice to the other party (with electronic mail being acceptable for such notice). Upon termination, all rights and licenses granted to you pursuant to the Program shall cease and you shall immediately remove all codes and links, references on Your Website regarding HABA, and cease any and all use of Promotional Materials, Trademarks or any other trade or service marks, trade names or any other items received through or used in connection with such Program. Subject to Section 13, upon the termination of your participation in the Program for any reason, you will be entitled to receive Commissions only on Eligible Purchases that occurred prior to such termination. HABA reserves the right to terminate the Program at any time upon notice to you. Any and all licenses and rights granted to you under this Agreement shall immediately cease and terminate. We may unilaterally redirect any link previously provided to you to any other destination without notice to you and without incurring any further liability or obligation to you. You have and will gain no vested rights in any ongoing stream of revenue and have no rights to continuation of your participation in the Program, and agree and acknowledge that we can terminate your participation in the Program at any time.
Any and all confidential or proprietary information of HABA or any other entity in which HABA has a relationship provided or obtained by you under this Agreement or as a part of the Program must be returned or destroyed upon termination. If requested, you will certify in writing signed by you or an authorized officer as to the return or destruction of all such confidential or proprietary information.
17. COMPLIANCE WITH LAWS
In connection with your participation in this Program, and without limiting any other provision of this Agreement, you and your corporate affiliates, officers, directors, employees, consultants, agents and representatives will comply with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees including but not limited to the following laws, rules and regulations governing marketing and promotions:
o The CAN-SPAM Act of 2003
o Section 5 of the FTC Act
o The FTC's disclosure rules regarding endorsements
To comply with the FTC's disclosure rules regarding endorsements, you shall include a disclosure statement within any and all pages/posts where affiliate links for the Program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us or from our designated affiliate management team for review, this also must be clearly stated in your disclosure. You shall include a clear and conspicuous disclosure within any and all pages, blog/posts, or social media posts where affiliate links for our Affiliate 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.
You shall include a disclosure statement within any and all pages/posts where affiliate links for our Program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us or from the affiliate management team for review, this also must be clearly stated in your disclosure. Specifically, 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 link or reference to HABA; a single statement on the site, or a separate page with your general disclosure statement is not an adequate disclosure; (c) disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure; and (d) social media posts must include appropriate hashtags. 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.
18. PRIVACY & DATA PROTECTION LAWS
You agree that you will at all times during the term comply with all privacy and data security laws, rules, regulations and self-regulatory principals (“Data Protection Laws”) applicable to you, Your Website and your and Your Website’s operations. You will maintain a terms of use and privacy policy on all of Your Websites that complies with any and all applicable Data Protection Laws. Such terms and privacy policy will be linked conspicuously from the homepage of all of Your Websites, and provide all necessary information and disclosures as required by any applicable Data Protection Laws. You will obtain any and all necessary consents from end users regarding their personal data, and shall not use, share, or disclose such data without having first obtained such necessary consents. You must make all reasonable efforts to update your terms of use and privacy policies as is necessary upon the change in applicable Data Protection Laws, or upon any new laws becoming applicable or binding upon you. We reserve the right to review the terms of use and privacy policy of any of Your Websites at any time, and you agree to make any changes necessary to such policies as we may determine necessary at your sole expense. Failure to do so will result in your required indemnification of use under Section 14 and may result in the immediate termination of this Agreement in our discretion.
19. MODIFICATION
We may modify this Agreement at any time, at our sole discretion and upon our posting or usage of a new version of this Agreement, the latest modified version shall be effective and control. If you disagree with any modification, your only recourse is to terminate this Agreement. You agree that, if you continue to participate in the Program following a posted modification, your continued participation constitutes binding acceptance of the modified term. Your sole remedy if you disagree with any update is to terminate this Agreement by written notice to us. You will check periodically for any updates to this Agreement, and make any changes necessary to Your Website or operations to ensure that you and Your Website remain in compliance with this Agreement, as same is modified from time to time.
20. GOVERNING LAW; JURISDICTION; EXCLUSIVE VENUE
This Agreement is governed by the laws of the State of New York, without regard to its choice of law principles. You hereby irrevocably consent to jurisdiction and exclusive venue of the state and/or federal courts located in Onondaga County, New York with respect to any proceeding regarding this Agreement. You will not prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement except in such courts and you will not attempt to claim that Onondaga County New York is an inconvenient forum or to otherwise remove any action from Onondaga County, New York (and to the extent you do you shall owe us reasonable attorneys fees and costs related to same).
21. SOCIAL MEDIA
Promotion on Facebook, Twitter, and other social media platforms is permitted following these general guidelines:
o You ARE allowed to promote offers to your own lists; more specifically, you’re welcome to use your affiliate links on your own Facebook, Twitter, etc. pages. For example: You may post, “10% off sale at HABA through Wednesday with code HABA10.”
o You are PROHIBITED from posting your affiliate links or other information regarding the Program or this Agreement on HABA’s Facebook, Twitter, Pinterest, etc. company pages in an attempt to turn those links into affiliate sales.
22. OPERATIONS OUTSIDE UNITED STATES
If you are conducting business in or taking orders from persons in other countries, you will follow all applicable laws of those countries. For example (and not by way of limitation), you will comply with the European Union’s Privacy and Electronic Communications Directive, and General Data Protection Regulation, and other applicable European and all local laws if you are operating, conducting business in, collecting information from, or taking orders from persons or entities in one or more of the European Union countries. You shall take all necessary time, and incur all necessary expenses to ensure your continued compliance with the same at all times. Failure to do so will require you to indemnify us in connection with Section 14 and may result in the immediate termination of this Agreement in our discretion.
23. REPRESENTATIONS, WARRANTIES AND COVENANTS
You represent, warrant and covenant to us that:
o you have the full power and authority to enter into this Agreement, and entering into this Agreement does not violate any agreement with a third party that you have, or any applicable law where you are located.
o if you are an entity, the signatory to this Agreement is fully empowered to and has the authority to sign and accept the terms of this Agreement and participate in the Program.
o you hold all licenses and approvals necessary for the performance of your
o obligations under this Agreement and the Program;
o you will perform its obligations under this Agreement in accordance with all
o applicable laws and using reasonable skill and care;
o you will not make any false, misleading or disparaging representations or
o statements regarding HABA,
o you and your officers or shareholders have never
o previously been party to an agreement terminated by Shareasale.com or any affiliate of Shareasale.com due to a breach;
o all information about you set out in the application or otherwise provided to us or Shareasale.com is complete, true, accurate, not misleading and will be kept
o up to date (including, but not limited to address details, payment details
o and tax information);
o your marketing of will comply with all applicable law including Data Protection Law;
o Your Website and social media and other accounts through which you promote Your Website do not now, and will not during the term, infringe on any third party’s intellectual property rights; and
o you will comply with all relevant tax laws.
24. GENERAL
o Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect. If any provision of this Agreement shall be judicially unenforceable in any jurisdiction, such provision shall not be affected with respect to any other jurisdiction.
o Assignment. You may not assign this Agreement or any of its rights under this Agreement without the prior written consent of HABA (which consent may be withheld in our reasonable discretion for any or no reason), and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns. We may assign this Agreement to any successor, including to any affiliated entity or otherwise.
o Nonwaiver. Any failure by HABA to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and remain in full force and effect.
o Relation to Other Agreements. In the event of any conflict or inconsistency between this Agreement and the Shareasale.com Agreement, the provisions of this Agreement shall prevail.
o Entire Agreement. This Agreement sets forth our entire agreement with respect to your participation in the Program, and supersedes all prior written or oral agreements (including prior versions of this Agreement), representations, warranties or covenants between the parties. You have not relied upon any representation, warranty, or other assurance made outside of this Agreement. There are no third-party beneficiaries of this Agreement.
o Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be solely on an individual basis. You will not seek to have any dispute heard as a class action, private attorney general action, or in any proceeding in which you act or propose to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of HABA.
o Force Majeure. No party will be liable for any breach of this Agreement arising from circumstances beyond its reasonable control (a “Force Majeure Event”). If a Force Majeure Event continues for six months, the unaffected party may terminate this Agreement by giving 15 days’ prior written notice to the other party.
o Non-Applicability. This Agreement and the fulfillment of any obligations hereunder does not involve the United Nations Convention on Contracts
o for International Sale of Goods, and same shall not apply.
o Equitable Relief. The parties agree that any breach of either of the party’s obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links, and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party’s obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links, and/or user data, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.
o Notices. Notices may be sent from us to you at the email address on your application. Notices you want to send to us can be sent to customerservice@HABAusa.com.
This Affiliate Marketing Program Agreement (the "Agreement") contains the terms and conditions that apply to your participation in the HABA USA Affiliate Marketing Program (the "Program") the terms of which Program are set forth herein.
Please read this Agreement carefully. By participating in the Program, you represent that you ("Affiliate" or "you" or "your") have read, fully understand and agree to the terms of this Agreement with Habermaass Corporation, Inc,. doing business as HABA USA, HABAusa.com ("HABA" or “HABA USA” or "we" or "us" or "our") in the State of New York, USA. In addition, if this Agreement is being executed on behalf of a legal entity, you represent and warrant that you are authorized to legally bind that entity to this Agreement. If you do not agree to these terms, do not agree to same and do not apply for or participate in the Program. For the sake of clarity, the Program is in place to target only purchasers located in the United States of America, and is not associated with any other company other than HABA USA (including its parent and/or affiliate in Europe which is not a party to this Agreement or the Program).
1. ENROLLMENT
In order to apply for enrollment into this Program, you must first sign up as an affiliate of Shareasale.com, Inc., an Illinois corporation ("Shareasale.com") and you must agree to Shareasale.com's Affiliate Service Agreement and other policies, terms and/or conditions which Sharesale.com may require any affiliate to agree to (the "Shareasale.com Agreement"), the terms of which are hereby incorporated by reference.
You may apply to participate in the Program by providing all the information required by Shareasale.com in connection with becoming a Shareasale.com affiliate and by accepting the terms of this Agreement. After receiving your application, we will review your website and application and notify you of your acceptance or rejection into our Program. We reserve the right to accept or reject your application in our sole discretion for any or no reason; however we encourage you to contact us if you feel we have made an incorrect decision. Including all of the domains and websites and other relevant information that you use in your profile and operations will help us make a better decision. If your application is accepted, you may obtain such discounts and affiliate commissions as are offered pursuant to this Program for so long as this Agreement is not terminated.
All information provided in your application must be truthful, accurate and complete. If any such information changes at any time subsequent to submitting your application, you must immediately update such information and keep us informed of any such change. Be advised that we reserve the right to verify all such information at any time. If it is determined, in our sole discretion, that you have failed to provide truthful, accurate and complete information, or to immediately update such information when necessary, we may restrict, suspend, or terminate your account and/or participation in the Program.
2. WEBSITE & OPERATIONAL RESTRICTIONS AND PROHIBITIONS
You and your participating website(s) ("Your Website"), and associated business operations may not:
o Infringe on our or any anyone else's intellectual property, publicity, privacy or other rights.
o Violate any law, rule or regulation.
o Breach this Agreement or the Shareasale.com Agreement.
o Contain any content that is threatening, harassing, defamatory, obscene, harmful to minors, objectionable or contain nudity, pornography or sexually explicit materials.
o Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data, or personal information.
o Contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website.
o Mislead customers as to the products or services available on Your Website or on the HABA USA website, located at www.HABAusa.com (the "HABA Site").
3. RESPONSIBILITIES AND LINKING TO OUR WEBSITE
o You are solely responsible for the development, operation and maintenance of Your Website and for all the content that appears on your Website. Sole responsibilities include the following, including others contained herein:
? Good faith efforts to promote the HABA products;
? The accuracy, timeliness and appropriateness of content posted on your site (including, among other things, all product-related materials);
? Ensuring that your site does not employ the use of any type of software download or technology that intercepts or re-directs traffic or referral fees to or from any website without the written consent of merchant;
? Ensuring that materials posted on Your Website do not violate or infringe upon the rights of any third party (e.g. including copyrights, trademarks, privacy, or other personal or proprietary rights);
? Notifying us of any relevant feedback or malfunctioning of the links, codes or other problems with your participation in the Program in accordance with the terms of the Agreement.
o Upon acceptance into the Program, links will be made available to you through the Shareasale.com affiliate website. Your acceptance in our Program means you agree to abide by the following:
? You will only use linking code obtained from the Shareasale.com affiliate website without manipulation.
? You will make changes to the linking code immediately upon notice from Sharesale.com or us and/or terminate or discontinue use or display of such earlier link. If links are not so removed or changed as directed by us, we reserve the right to redirect such links as we shall solely determine, with or without compensation to you, and same is a breach of this Agreement.
? All domains that use your affiliate link must be listed in your affiliate profile on the Shareasale.com affiliate website.
? Affiliates may not advertise our products on websites that they do not own, including, for instance, Google Product Search, Amazon, eBay or any comparison shopping engines such as Shopzilla or Pricegrabber.
? Your Website will not in any way copy, resemble, or mirror the look and feel of the HABA Site. You will also not use any means to create the impression that Your Website is the HABA Site or any part of the HABA Site including, without limitation, framing the HABA Site in any manner.
? You may not make any references to HABA or any individual HABA employee, agent, board member, officer, affiliate, representative or agent in any press release, and you may not make any other public communication (written or verbal) regarding the Program, your use of any HABA Intellectual Property, or participation in the Program without first having submitted such material to us and receiving our prior written consent which we may withhold in our sole discretion.
? Any communications to third party must not state they are sent by or on behalf of HABA.
? You may not engage in cookie stuffing or include pop-ups, false or misleading links on Your Website. In addition, wherever possible, you will not attempt to mask the referring URL information (i.e. the page from where the click is originating).
? You may not use redirects to bounce a click off of a domain from which the click did not originate in order to give the appearance that it came from that domain.
? You may not create any links that lead the customer to a destination site that is not clearly suggested by the content of the starting site.
? You may not create affiliate tracking links that also contain a tracking link for other referral programs ("Other Referral Programs"). Affiliates are permitted to participate in either the Program or Other Referral Programs but individual links must be specific and exclusive to one of the programs. By participating in this Program, you agree not to claim commission or credit from both the Program and from our Other Referral Programs for the same user.
? You may not use your affiliate links to claim commissions for your own purchases on HABA.com.
? You may not, nor knowingly allow any person to, activate or attempt to activate a link or inflate or attempt to inflate the amount of any sought-after or resulting tracked activities, including but not limited to the use of any method or technology that doe not actually deliver an end user to the destination site associated with such link.
? Our determination as to whether a tracked activity resulted from a link shall be final and binding upon you.
4. PAY-PER-CLICK ("PPC") GUIDELINES
If you are enrolled in this Program and participate in PPC advertising, you must adhere to our PPC guidelines as follows:
o You may not bid on any of our Trademarks, as defined in Section 5, including any variations or misspellings thereof for search or content-based campaigns on Google, MSN, Bing, Yahoo or any other network.
o You may not use our Trademarks in sequence with any other keyword.
o You may not use our Trademarks in your ad title, ad copy, display name or as the display URL.
o You may not direct link to the HABA Site from any PPC ad or use redirects that yield the same result. Affiliates must be directed to an actual page on Your Website only.
o You may not bid in any manner appearing higher than HABA for any search term in position 1-5 in any auction style PPC advertising program.
If you automate your PPC campaigns, it is your responsibility to exclude our Trademarks from your PPC advertising program and we strongly suggest you add our Trademarks as negative keywords. We have a strict no tolerance policy on PPC trademark bidding. If you engage in PPC trademark bidding that uses our Trademarks, we may terminate your participation in the Program immediately.
5. TRADEMARKS
Upon acceptance into the Program, HABA grants you a limited, non-exclusive, revocable, royalty-free right to use the Trademarks of HABA during the term of this Agreement solely for the purpose of generating the sale of HABA products in connection with your participation in the Program, provided that you shall not: (a) use the Trademarks in any manner to communicate or suggest any sponsorship or other connection between HABA and you other than your participation in the Program, and (b) harm or adversely affect the Trademarks or the goodwill associated with the Trademarks. All promotional messaging and materials used by you containing such Trademarks shall be subject to HABA’s prior written approval. Except for the limited license provided in this Agreement, HABA reserves all rights in and to the Trademarks and the goodwill associated therewith. All uses of the Trademarks by you shall inure to the benefit of HABA. You shall not acquire, directly or by implication, any rights or license in the Trademarks except as expressly provided in this Agreement. Your right to use the Trademarks will terminate immediately if you violates any of the terms of this Agreement. For purposes of this Agreement, "Trademarks" means "HABA," "HABA USA" "HABAusa.com, " the HABA logo and such other names, logos, trade names, trademarks, service marks, trade dress, design marks, brands, copyrights in any designs and other copyrightable subject matter, and other identifiers of HABA and its products as HABA may from time to time notify you to be Trademarks within the meaning of this Agreement.
6. PROMOTION CODES, COUPONS AND SPECIAL OFFER GUIDELINES
If you are enrolled in our Program and Your Website promotes coupon codes, you must adhere to our Coupon Guidelines as follows:
o You may ONLY advertise promotion and coupon codes and special offers that are provided to you through the Program or that are displayed to the general viewing public on the HABA Site. Posting any information about how to work around the requirements of a coupon/promotion (i.e. first time customers only) will result in your removal from the Program. Coupons must be displayed in their entirety with the full offer, exclusions, disclaimers, valid expiration date and code.
o You may NOT use any technology that covers up the coupon code and generates an affiliate click by revealing the code(s).
o You may NOT advertise coupon codes obtained from our non-affiliate advertising, customer e-mails, paid search, or any other advertising campaign.
o You may NOT give the appearance that any ongoing offer requires clicking from Your Website in order to redeem. For example, if all items on the site have free shipping over $30, you may not turn this into an offer that infers that the customer must click from Your Website to get this deal.
Additionally, if (a) Your Website ranks on the first page of Google ad results for terms related to HABA combined with the words coupon, coupons, coupon code, promo code, or any similar term and (b) your conversion rate exceeds 25%, then you will be entitled to a lower commission than our standard rate to offset the reduced profitability of orders, which rate is currently 2%.
7. DOMAIN NAMES
Use of any of our Trademarks as part of the domain or sub-domain (for example HABA.website.com or www.HABA-coupons.com) for Your Website is strictly prohibited.
8. ADVERTISING & PUBLICITY
Upon acceptance into the Program, HABA grants to you a nonexclusive, nontransferable license (the "License") to use certain banner advertisements, button links, text links, and/or other graphic or textual material which are subject to our review and consent at any time (the "Promotional Materials") for display and use on Your Website. The term of the License shall expire upon the expiration or termination of this Agreement. You may not subcontract, assign, resell, lease, or sublicense any part of your participation in the Program or run a sub-affiliate program. HABA may make Promotional Materials available to you to display and use on Your Website provided that the manner of display complies with the following requirements:
o You may only use the Promotional Materials to promote the HABA Site (and the products available thereon), and for linking to the HABA Site.
o You shall use only such links to the HABA Site as are provided to you by HABA.
o You shall not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by HABA without consent from HABA. If you wish to alter or otherwise modify the Promotional Materials, you must obtain prior written consent from HABA for such alteration of modification.
o You shall not use the Promotional Materials to promote the HABA Site (and the products available thereon) to customers who are not physically located in the United States.
You shall not create, publish, distribute, or print any written materials that make reference to our Program unless you adhere to the following:
o Abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) with respect to the distribution of any written materials.
o E-mails must be sent on your behalf and must not imply that the e-mail is being sent on behalf of HABA.
o E-mails and any related written materials must first be submitted to HABA for approval prior to being sent or HABA must be sent a copy of the e-mail.
9. REVERSAL & COMMUNICATION POLICY
HABA takes pride in its very low reversal rate, which we attribute to open communication with our affiliates. However, we reserve the right to reverse orders due to order cancellations, duplicate tracking, returns, disputed charges, and Program violations as outlined in this Agreement. Additionally, if we ask you for clarification or more information on any orders or clicks that we suspect may be in violation of this Agreement, we expect that you will respond in a timely and honest manner. Below are violations of our communications policy.
o You are not forthcoming, intentionally vague or are found to be lying.
o You are not responsive within a reasonable time period and after multiple attempts to contact with information listed in your network profile.
o You cannot substantiate or validate the source of your traffic to our Program with clear and demonstrable proof.
If any of the above applies, then we reserve the right to reverse orders, set your commission to 0% or suspend you from the Program for the period or orders in question. We know that many violations are a result of automated processes; however it is incumbent upon you to ensure that you have the appropriate checks and balances in place to pro-actively address these issues and adhere to our Program.
10. INTELLECTUAL PROPERTY
HABA retains all right, title, ownership, and interest in the Promotional Materials and Trademarks, including any and all copyright, trademark, or other intellectual property rights therein (the “Intellectual Property”). Nothing in this Agreement shall be construed to grant you any right, title or ownership in the Promotional Materials, or in the underlying intellectual property, other than the right to use the Promotional Materials in accordance with the License, as set forth in Section 8. Upon termination of this Agreement, your right to use any Intellectual Property shall cease immediately.
11. RELATIONSHIP OF PARTIES
This Agreement shall not be construed to create any employment relationship, agency relationship, partnership, or joint venture between HABA and you. You shall provide services for HABA as an independent contractor. You shall have no authority to bind HABA to any agreement, nor shall you be considered to be an agent of HABA, or hold yourself out to be so, in any respect to any individual or entity.
12. AFFILIATE COMMISSIONS
Upon acceptance into the Program, you will be eligible to receive an affiliate commission (the "Commission") for the successful completion of Eligible Purchases. An "Eligible Purchase" occurs when a customer (not you or a third party directly or indirectly working in connection with you) clicks-through the link (supplied by HABA to you) to the HABA Site and successfully completes a purchase for which HABA receives and retains payment, in accordance with the terms of the Shareasale.com Agreement and its terms and policies, as same may be amended from time to time. To be an Eligible Purchase, the sale must be completed by a customer that is physically located in the United States. The current rates of Commission shall be set forth in your Shareasale.com affiliate program located on the Shareasale.com affiliate website. HABA reserves the right to modify the Commission rate from time to time, in its sole discretion. Any change in Commission rates and structure shall be prospective in nature only. Some items, brands, products, categories, or actions may not be eligible for Commission. HABA is responsible for authorizing Commission payments and Shareasale.com will be solely responsible for fulfilling and transferring all Commission payments in accordance with the Shareasale.com Agreement. HABA will be entitled to withhold, deduct and set off from any payments to be made to you hereunder any sums owed by you to HABA, whether in connection with this Agreement (including any breach hereof by you) or otherwise. Shareasale.com shall keep relevant records of orders originating from Your Websites, in accordance with the terms of the Shareasale.com Agreement and its terms and policies, as same may be amended from time to time.
13. DISCLAIMER
YOU ACKNOWLEDGE THAT YOU HAVE NOT RELIED ON ANY WARRANTIES RELATED TO THE PROGRAM OTHER THAN THE EXPRESS STATEMENTS IN THIS AGREEMENT. UNDER NO CIRCUMSTANCES SHALL HABA BE LIABLE TO YOU UNDER THESE TERMS, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES RELATED TO THE PROGRAM (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR PROFITS OR LOST BUSINESS AND INCLUDING COSTS ASSOCIATED WITH THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HABA’S LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF OR RELATED TO THE PROGRAM OR THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT FOR THE TWELVE MONTH PERIOD PRIOR TO THE ALLEGED LOSS. HABA DOES NOT WARRANT OR GUARANTEE ANY RESULTS OF PARTICIPATION IN THE PROGRAM. ALL PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS HEREUNDER ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. YOU RECOGNIZE THAT THESE DISCLAIMERS ARE AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH HABA WOULD NOT HAVE ENTERED INTO THIS AGREEMENT. HABA DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY (TO THE EXTENT PERMITTED BY LAW), REGARDING THE PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, INCLUDING, WITHOUT LIMITATION, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE, OR PERFORMANCE OF THE PRODUCTS, PROGRAMS AND PROMOTIONAL MATERIALS SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF HABA WHATSOEVER.
14. INDEMNIFICATION
You acknowledge that by entering into this Agreement, we do not assume and should not be exposed to the business and operational risks associated with Your Website, your business, or any aspects of the operation or content of Your Website. ACCORDINGLY, YOU AGREE TO AND SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS HABA, ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND REPRESENTATIVES FROM ANY AND ALL CLAIMS, DAMAGES, LAWSUITS, ACTIONS, COMPLAINTS, DEMANDS, LIABILITIES, LOSSES, PENALTIES, FINES, INTEREST, GOVERNMENTAL INVESTIGATIONS, JUDGMENTS, SETTLEMENTS, COSTS AND EXPENSES OR OTHER COSTS (INCLUDING REASONABLE ATTORNEYS FEES), THAT DIRECTLY OR INDIRECTLY ARIES OUT OF OR ARE BASED UPON (A) ANY BREACH OF YOUR OBLIGATIONS UNDER THIS AGREEMENT INCLUDING A BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT MADE BY YOU IN THIS AGREEMENT, (B) YOU ENGAGING IN ANY UNLAWFUL ACTIVITY, OR ACTIVITY WHICH FAILS TO COMPLY WITH ANY LAWS, RULES OR REGULATIONS INCLUDING WITHOUT LIMITATION DATA PROTECTION LAWS (DEFINED BELOW) OR RESULTS IN A GOVERNMENTAL INVESTIGATION, (C) YOUR INAPPROPRIATE ACTIONS UNDER THE PROGRAM, (D) YOUR AND YOUR EMPLOYEES AND AGENT’S NEGLIGENCE OR WILLFUL MISCONDUCT, AND/OR (E) THE CONTENT OF YOUR WEBSITE AND SOCIAL MEDIA ACCOUNTS AND ANY ACTUAL OR ALLEGED INFRINGEMENT BY YOU OF ANY INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS OF ANY PERSON.
HABA may, at its election and in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by you. HABA may participate in the defense of all claims as to which it does not assume defense and control, and you shall not settle any such claim without HABA’s prior written consent.
15. CONFIDENTIALITY
Any information that you are exposed to by virtue of your participation in the Program, which information is not available to the general public, shall be considered to be "Confidential Information." You may not disclose any Confidential Information to any person or entity, except where compelled by law, unless you obtain prior written consent for such disclosure from HABA. You shall not use any Confidential Information except to the extent necessary to fulfill the purposes of this Agreement.
16. TERMINATION
Your participation in the Program shall begin upon your acceptance as an affiliate by HABA and shall end when terminated by either party. Either party may terminate such status at any time, with or without cause, by providing written notice to the other party (with electronic mail being acceptable for such notice). Upon termination, all rights and licenses granted to you pursuant to the Program shall cease and you shall immediately remove all codes and links, references on Your Website regarding HABA, and cease any and all use of Promotional Materials, Trademarks or any other trade or service marks, trade names or any other items received through or used in connection with such Program. Subject to Section 13, upon the termination of your participation in the Program for any reason, you will be entitled to receive Commissions only on Eligible Purchases that occurred prior to such termination. HABA reserves the right to terminate the Program at any time upon notice to you. Any and all licenses and rights granted to you under this Agreement shall immediately cease and terminate. We may unilaterally redirect any link previously provided to you to any other destination without notice to you and without incurring any further liability or obligation to you. You have and will gain no vested rights in any ongoing stream of revenue and have no rights to continuation of your participation in the Program, and agree and acknowledge that we can terminate your participation in the Program at any time.
Any and all confidential or proprietary information of HABA or any other entity in which HABA has a relationship provided or obtained by you under this Agreement or as a part of the Program must be returned or destroyed upon termination. If requested, you will certify in writing signed by you or an authorized officer as to the return or destruction of all such confidential or proprietary information.
17. COMPLIANCE WITH LAWS
In connection with your participation in this Program, and without limiting any other provision of this Agreement, you and your corporate affiliates, officers, directors, employees, consultants, agents and representatives will comply with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees including but not limited to the following laws, rules and regulations governing marketing and promotions:
o The CAN-SPAM Act of 2003
o Section 5 of the FTC Act
o The FTC's disclosure rules regarding endorsements
To comply with the FTC's disclosure rules regarding endorsements, you shall include a disclosure statement within any and all pages/posts where affiliate links for the Program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us or from our designated affiliate management team for review, this also must be clearly stated in your disclosure. You shall include a clear and conspicuous disclosure within any and all pages, blog/posts, or social media posts where affiliate links for our Affiliate 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.
You shall include a disclosure statement within any and all pages/posts where affiliate links for our Program are posted as an endorsement or review, and where it is not clear that the link is a paid advertisement. This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. If you received the product for free from us or from the affiliate management team for review, this also must be clearly stated in your disclosure. Specifically, 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 link or reference to HABA; a single statement on the site, or a separate page with your general disclosure statement is not an adequate disclosure; (c) disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure; and (d) social media posts must include appropriate hashtags. 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.
18. PRIVACY & DATA PROTECTION LAWS
You agree that you will at all times during the term comply with all privacy and data security laws, rules, regulations and self-regulatory principals (“Data Protection Laws”) applicable to you, Your Website and your and Your Website’s operations. You will maintain a terms of use and privacy policy on all of Your Websites that complies with any and all applicable Data Protection Laws. Such terms and privacy policy will be linked conspicuously from the homepage of all of Your Websites, and provide all necessary information and disclosures as required by any applicable Data Protection Laws. You will obtain any and all necessary consents from end users regarding their personal data, and shall not use, share, or disclose such data without having first obtained such necessary consents. You must make all reasonable efforts to update your terms of use and privacy policies as is necessary upon the change in applicable Data Protection Laws, or upon any new laws becoming applicable or binding upon you. We reserve the right to review the terms of use and privacy policy of any of Your Websites at any time, and you agree to make any changes necessary to such policies as we may determine necessary at your sole expense. Failure to do so will result in your required indemnification of use under Section 14 and may result in the immediate termination of this Agreement in our discretion.
19. MODIFICATION
We may modify this Agreement at any time, at our sole discretion and upon our posting or usage of a new version of this Agreement, the latest modified version shall be effective and control. If you disagree with any modification, your only recourse is to terminate this Agreement. You agree that, if you continue to participate in the Program following a posted modification, your continued participation constitutes binding acceptance of the modified term. Your sole remedy if you disagree with any update is to terminate this Agreement by written notice to us. You will check periodically for any updates to this Agreement, and make any changes necessary to Your Website or operations to ensure that you and Your Website remain in compliance with this Agreement, as same is modified from time to time.
20. GOVERNING LAW; JURISDICTION; EXCLUSIVE VENUE
This Agreement is governed by the laws of the State of New York, without regard to its choice of law principles. You hereby irrevocably consent to jurisdiction and exclusive venue of the state and/or federal courts located in Onondaga County, New York with respect to any proceeding regarding this Agreement. You will not prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement except in such courts and you will not attempt to claim that Onondaga County New York is an inconvenient forum or to otherwise remove any action from Onondaga County, New York (and to the extent you do you shall owe us reasonable attorneys fees and costs related to same).
21. SOCIAL MEDIA
Promotion on Facebook, Twitter, and other social media platforms is permitted following these general guidelines:
o You ARE allowed to promote offers to your own lists; more specifically, you’re welcome to use your affiliate links on your own Facebook, Twitter, etc. pages. For example: You may post, “10% off sale at HABA through Wednesday with code HABA10.”
o You are PROHIBITED from posting your affiliate links or other information regarding the Program or this Agreement on HABA’s Facebook, Twitter, Pinterest, etc. company pages in an attempt to turn those links into affiliate sales.
22. OPERATIONS OUTSIDE UNITED STATES
If you are conducting business in or taking orders from persons in other countries, you will follow all applicable laws of those countries. For example (and not by way of limitation), you will comply with the European Union’s Privacy and Electronic Communications Directive, and General Data Protection Regulation, and other applicable European and all local laws if you are operating, conducting business in, collecting information from, or taking orders from persons or entities in one or more of the European Union countries. You shall take all necessary time, and incur all necessary expenses to ensure your continued compliance with the same at all times. Failure to do so will require you to indemnify us in connection with Section 14 and may result in the immediate termination of this Agreement in our discretion.
23. REPRESENTATIONS, WARRANTIES AND COVENANTS
You represent, warrant and covenant to us that:
o you have the full power and authority to enter into this Agreement, and entering into this Agreement does not violate any agreement with a third party that you have, or any applicable law where you are located.
o if you are an entity, the signatory to this Agreement is fully empowered to and has the authority to sign and accept the terms of this Agreement and participate in the Program.
o you hold all licenses and approvals necessary for the performance of your
o obligations under this Agreement and the Program;
o you will perform its obligations under this Agreement in accordance with all
o applicable laws and using reasonable skill and care;
o you will not make any false, misleading or disparaging representations or
o statements regarding HABA,
o you and your officers or shareholders have never
o previously been party to an agreement terminated by Shareasale.com or any affiliate of Shareasale.com due to a breach;
o all information about you set out in the application or otherwise provided to us or Shareasale.com is complete, true, accurate, not misleading and will be kept
o up to date (including, but not limited to address details, payment details
o and tax information);
o your marketing of will comply with all applicable law including Data Protection Law;
o Your Website and social media and other accounts through which you promote Your Website do not now, and will not during the term, infringe on any third party’s intellectual property rights; and
o you will comply with all relevant tax laws.
24. GENERAL
o Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, the remainder of this Agreement will remain in full force and effect. If any provision of this Agreement shall be judicially unenforceable in any jurisdiction, such provision shall not be affected with respect to any other jurisdiction.
o Assignment. You may not assign this Agreement or any of its rights under this Agreement without the prior written consent of HABA (which consent may be withheld in our reasonable discretion for any or no reason), and any attempted assignment without such consent shall be void. Subject to the foregoing restriction, this Agreement will be fully binding upon, inure to the benefit of, and be enforceable by us and our respective successors and assigns. We may assign this Agreement to any successor, including to any affiliated entity or otherwise.
o Nonwaiver. Any failure by HABA to insist upon or enforce performance by you of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement or otherwise by law will not be construed as a waiver or relinquishment of any right to assert or rely upon the provision, right or remedy in that or any other instance; rather, the provision, right or remedy will be and remain in full force and effect.
o Relation to Other Agreements. In the event of any conflict or inconsistency between this Agreement and the Shareasale.com Agreement, the provisions of this Agreement shall prevail.
o Entire Agreement. This Agreement sets forth our entire agreement with respect to your participation in the Program, and supersedes all prior written or oral agreements (including prior versions of this Agreement), representations, warranties or covenants between the parties. You have not relied upon any representation, warranty, or other assurance made outside of this Agreement. There are no third-party beneficiaries of this Agreement.
o Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be solely on an individual basis. You will not seek to have any dispute heard as a class action, private attorney general action, or in any proceeding in which you act or propose to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of HABA.
o Force Majeure. No party will be liable for any breach of this Agreement arising from circumstances beyond its reasonable control (a “Force Majeure Event”). If a Force Majeure Event continues for six months, the unaffected party may terminate this Agreement by giving 15 days’ prior written notice to the other party.
o Non-Applicability. This Agreement and the fulfillment of any obligations hereunder does not involve the United Nations Convention on Contracts
o for International Sale of Goods, and same shall not apply.
o Equitable Relief. The parties agree that any breach of either of the party’s obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links, and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party’s obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links, and/or user data, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.
o Notices. Notices may be sent from us to you at the email address on your application. Notices you want to send to us can be sent to customerservice@HABAusa.com.