THIS AGREEMENT (the “Agreement”) with Hats On, LLC, a California limited liability company (“Merchant”) is entered into as of the date (the “Effective Date”) upon which you (“You”, “Your”, “Affiliate”) become an Affiliate of the service provided by Shareasale.com, Inc., an Illinois corporation (“Shareasale”). Your use of any Link or other activities as an Affiliate on behalf of Merchant is expressly made conditional on Your acceptance of the terms hereof. Reference is hereby made to the Shareasale Merchant Service Agreement, which is incorporated herein by this reference. All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Shareasale Merchant Service Agreement. In consideration of Your agreement to become an Affiliate pursuant to the terms hereof, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the You and Merchant (each a “Party” and collectively, the “Parties”) agree as follows:
Merchant hereby grants Affiliate the non-exclusive, limited right to endorse, and otherwise advertise the sale of, one or more products and/or services using Merchant Marks (as defined below) via one or more Links (the “Services”) during the Term (as defined below). All images and intellectual property rights, trademarks, copyrights, trade names, service marks and content, including rights in and to any derivatives thereof, related to Merchant, its products and/or services, and/or Merchant’s promotion thereof, whether or not provided for Affiliate’s use in rendering the Services (collectively, the “Merchant Marks”), is and shall remain the sole property of Merchant, and no part thereof shall be deemed assigned or licensed to Affiliate except as expressly provided for herein. Affiliate may not modify the Merchant Marks, or images or content provided to Affiliate in any way, and Affiliate agrees not to use any Merchant Marks in a misleading or disparaging way, or in any way that implies any endorsement, sponsorship or approval of Affiliate, or in a way that would be obscene, indecent or unlawful or otherwise violate applicable law. Any use of the Merchant Marks other than as specifically authorized herein is strictly prohibited, and any rights not expressly granted herein are expressly reserved. Affiliate acknowledges that Affiliate’s use of any Links, Merchant Marks, or any images or content provided to Affiliate to render the Services, will not create in Affiliate, nor will Affiliate represent that it has, any right, title or interest in or to any of Merchant’s products and/or services promoted pursuant hereto. Affiliate will not challenge the validity of or attempt to register any of the Merchant Marks or its interest therein as a licensee, nor will Affiliate adopt any derivative or confusingly similar names, brands or marks or create any combination marks with the Merchant Marks. Affiliate acknowledges Merchant’s ownership and exclusive right to use the Merchant Marks and agrees that all goodwill arising as a result of the use of the Merchant Marks shall inure to Merchant’s benefit.
The terms hereof shall commence on the Effective Date, and continue until terminated by Merchant by any means including removing Affiliate from Merchant’s program or terminating its relationship with Shareasale, or until either party breaches this Agreement and fails to cure any such noticed breach within fifteen (15) days of such notice, whichever is earliest to occur (the “Term”). Upon termination for any reason, Affiliate agrees to immediately discontinue any and all use of the Links and/or Merchant Marks, and to take any and all actions necessary to ensure that Affiliate has no access to, and shall not further use, any of the same.
Affiliate agrees to receive a Sale Commission in an amount equal fifteen percent (15%) of Merchant’s Qualifying Revenues derived from each Measurable Action generated by Affiliate. “Measurable Action” shall mean an authorized transaction in which an internet user completes a purchase derived from a Click from a Link within thirty (30) days of such Click. Affiliate shall not be entitled to receive any Sale Commission on any purchase that: (i) has not been adequately tracked or registered, via Shareasale, whether due to an improperly formatted Tracking Code or otherwise; (ii) has been cancelled, or returned and refunded; (iii) has been earned by fraudulent means or misuse of the Shareasale service or Affiliate’s website; or (iv) results from a transaction that is considered Void. Any Sale Commission due to Affiliate hereunder shall be paid by Shareasale, pursuant to the Shareasale Merchant Service Agreement. Sales shall remain in pending status prior to being credited to an Affiliate for a period of thirty (30) days (the “Pending Sales Period”), during which period the sale will remain in a status allowing Merchant to Void the Sale commission for the remainder of the current month, plus 19 days into the next month. Merchant reserves the right to change or modify its Sale Commission rate or Pending Sales Period at any time with or without notice to Affiliate.
Affiliate agrees that: (a) Affiliate shall be an independent contractor of Merchant; (b) nothing in this Agreement shall create, be deemed to create, or be construed as creating any partnership, joint venture, employer-employee, or agency relationship for any purpose; (c) neither Affiliate nor Merchant shall act as an agent or representative of the other party in any dealings which it may have with any third party; (d) Affiliate shall incur no obligation in Merchant’s name without Merchant’s expressed prior written consent; and (e) Affiliate is responsible for withholding all taxes with respect to, and shall have no claim for any additional benefits of any kind arising from, any Sale commission paid to Affiliate herein.
Affiliate shall at all times keep in confidence and shall not divulge to others or use for Affiliate’s own benefit or others, other than in connection with each Party’s obligations set forth herein, the terms of this Agreement or any secret or confidential information, knowledge or data of Merchant unless authorized in writing by Merchant or required by law.
Affiliate hereby represents and warrants that (a) Affiliate has complied with, and will continue to comply with, all applicable laws, regulations and/or rules of any applicable governing body or agency or other authority whether related to the rendering of the Services hereunder or otherwise; (b) Affiliate is free to enter into this Agreement, and no rights of any third parties are or will be violated by Affiliate entering into this Agreement; (c) Affiliate is not subject to any conflicting obligations, and Affiliate has not made and will not hereafter make any agreement with any third party that could or would interfere with the rights granted to Merchant hereunder; (d) all material of Affiliate or furnished by Affiliate hereto is truthful and accurate, is or will be wholly original to Affiliate (except to the extent that any such material may be taken from material in the public domain), and, to the best of Affiliate’s knowledge, will not violate or infringe upon any rights of any kind or nature whatsoever of any person, including, without limitation, any right of privacy or publicity; (e) Affiliate has not, and shall not, engage in any public conduct, or publicly reported private conduct, that could or would tend to place Merchant, its brand, or otherwise its image and reputation, in an embarrassing or compromising situation that materially and adversely affects Merchant and/or its brand; (f) Affiliate has been advised in writing hereby to consult with an attorney regarding the terms and conditions of this Agreement and by executing this Agreement Affiliate has either done so or elected not to consult with an attorney.
MERCHANT AND ITS AGENTS AND/OR REPRSENTATIVES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS OR ACCURACY OF ANY PRODUCT AND/OR SERVICE AFFILIATE AGREES TO PROMOTE PURSUANT TO THE SERVICES. TO THE EXTENT PERMITTED BY LAW, ANY PRODUCT AND/OR SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR CONDITION OF ANY KIND. MERCHANT HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL MERCHANT BE HELD LIABLE FOR ANY INDIRECT, PUNITIVE OR CONSEQUENTAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, MERCHANT IS DETERMINED TO HAVE ANY LIABILITY TO AFFILIATE, THE PARTIES AGREE THAT MERCHANT’S AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL AFFILIATE COMMISSIONS EARNED BY AFFILIATE DURING THE TERM.
MERCHANT SHALL NOT BE LIABLE TO AFFILIATE OR ANY THIRD PARTY FOR (I) ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER ARISING OUT OF THE USE OF OR INABILITY TO USE THE SHAREASALE.COM SERVICE OR ANY INFORMATION PROVIDED ON THE SHAREASALE WEB SITE OR ANY OTHER HYPERLINKED WEB SITE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, ANY LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF PROGRAMS OR OTHER DATA, EVEN IF MERCHANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES IN THE WEB SITE OR ANY HYPERLINKED WEB SITE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE EXCLUSION MAY NOT APPLY. IN SUCH JURISDICTIONS, A PARTY'S LIABILITY IS LIMITED TO THE SMALLEST AMOUNT PERMITTED BY LAW. THIS PARAGRAPH WILL SURVIVE THE FAILURE OF ANY EXCLUSIVE OR LIMITED REMEDY.
Affiliate shall indemnify, defend, save and hold Merchant, its past, present or future subsidiaries, parent companies, divisions, affiliated businesses or partnerships, trustees, directors, officers, shareholders, partners, agents, employees, consultants, attorneys, assigns, administrators, predecessors and/or successors harmless from any and all rights, claims, demands, liabilities, actions and/or causes of action, whether at law or in equity, suits, damages, losses, attorneys’ fees, costs and expenses, of whatever nature whatsoever, known or unknown, fixed or contingent, suspected or unsuspected, arising out of or in any way relating to: (a) Affiliate’s breach of this Agreement; (b) Affiliate’s furnishing of any misinformation to Merchant; (c) any claim arising out of Affiliate’s rendering of Services; or (d) any claim arising out of the use of or inability to use the Shareasale service.
This Agreement may not be modified without the express written consent of all of Parties hereto. Nothing in this Agreement, express or implied, is intended to nor shall confer upon any person or entity (other than the Parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement shall be deemed to be entered into in Los Angeles County, California and shall be governed by and interpreted in accordance with the laws of the State of California, without regard to principles of conflicts of law. No waiver by either party hereto of any condition or provision of this Agreement shall be considered a waiver of any other condition or provision of this Agreement or of the same condition or provision at another time. Should any provision hereof be found invalid, in whole or in part, it shall not affect the validity or enforceability of any other provision hereof or of that provision insofar as it is not invalid or unenforceable. This Agreement shall bind and inure to the benefit of the parties hereto and each of their respective successors, assigns, heirs, legal representatives, administrators, executors, and guardians. This Agreement is personal to Affiliate and is not assignable by Affiliate. This Agreement, and any and all rights and obligations of Merchant hereunder, may be freely assigned by Merchant. This Agreement constitutes the entire understanding of the Parties and supersedes any and all prior or contemporaneous agreements of the Parties, whether oral or written. Any rights or obligations of the Parties hereto which, by their nature, should survive termination or expiration of this Agreement will survive any such termination or expiration, subject to any limitation set forth herein.
