SHAREASALE AFFILIATE AGREEMENT
Hall Wines, LLC and the individual or entity agreeing to this Affiliate Agreement (“Publisher” and collectively, the “Parties”) agree as follows:
WHEREAS, Hall Wines, LLC (“Hall”) is engaged in the manufacture, distribution, and sale of luxury, highly acclaimed wines;
WHEREAS, Hall has entered into an agreement (“ShareASale Agreement”) with Awin, Inc. to join the affiliate marketing platform known as ShareASale, which is part of Awin, Inc.;
WHEREAS, Hall is an advertiser under the ShareASale platform and desires Publisher to market Hall’s products in accordance with Hall’s applicable campaign and reposting content published by Publisher and subject to the terms herein;
WHEREAS, Publisher similarly desires to market Hall’s products in accordance with Hall’s applicable campaign and subject to the terms herein in exchange for Commission, as that term is defined, and amount calculated under the ShareASale Agreement (Capitalized words not otherwise defined shall have the meaning set for the in the ShareASale Agreement).
NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, the Parties agree as follows:
1. NON-EXCLUSIVE, REVOCABLE, NON-TRANSFERABLE LICENSE
Hall grants Publisher a non-exclusive, revocable, non-transferable license to use the advertising materials Hall provides to it, which may include without limitation, trademarks, trade names, advertising content, images, and/or other material (“Advertising Material”), solely for the purpose of marketing Hall’s products in line with this Affiliate Agreement during the term of Hall’s applicable campaign, and non-exclusive right and license to repost content published by Publisher in connection with that Campaign.
2. RESTRICTIONS ON LICENSE
Publisher may only use the Advertising Materials as follows:
A. Publisher may not alter the Advertising Material in any way.
B. Publisher may only use the Advertising Material in connection with this Agreement under the ShareASale platform.
C. Publisher must comply with any and all of Hall’s style guide and trademark usage guidelines.
D. Publisher must immediately cease use of the Advertising Material upon Hall’s request.
E. Publisher may not use the Advertising Material in violation of applicable law.
F. Publisher may not use the Advertising Material to market any alcoholic beverage to a minor.
G. Publisher may not promote underage drinking, illegal drugs, tobacco, firearms/weapons, or any activities that may appear unsafe or dangerous in connection with its marketing of Hall and/or its products.
H. Publisher may not use the Advertising Material in a misleading, disparaging, or defaming way or in any manner that disparages, defames, or misrepresents Hall, its products or other people, products, or companies.
I. Publisher may not use the Advertising Material in an obscene, indecent, or unlawful manner.
J. Publisher may not market Hall or its products in a manner that is sexually explicit or suggestive; unnecessarily violent or derogatory of any ethnic, racial, gender, religious, professional or age group; profane or pornographic; or contains nudity.
K. Publisher may not endorse any form of hate or hate group in connection with its marketing of Hall and/or its products.
L. Publisher may not suggest or imply that Hall endorses, sponsors, or approves of any other products.
M. Publisher may not include trademarks, logos, or trade dress (such as distinctive packaging or phraseology) owned by any entity other than Hall in its promotion of Hall and/or its products.
N. Publisher shall not encourage the violation of any law, rule, or regulation.
O. Publisher shall not promote any particular political party or agenda in connection with its marketing of Hall and/or its products.
P. Publisher shall not communicate messages or images inconsistent with the positive image and/or goodwill of Hall.
3. GRANT OF RIGHTS
Subject to the terms and conditions set forth herein, Publisher grants to Hall the exclusive right and license to use throughout the world (“Territory”) Publisher’s endorsement and/or name, nickname, initials, image, likeness, voice, signature, photograph and other elements or attributes of her/his persona, identity or personality (“Property”) in connection with the Campaign as well as the right to use such Property on the related packaging, and non-exclusive right and license to repost content published by Publisher throughout the Territory in connection with that Campaign.
4. CONFIDENTIALITY
A. Confidential Information” means confidential, proprietary and/or trade secret information that relates to the business, products, work or ideas of one party (the “Disclosing Party”), its affiliates, or to any of their respective employees, officers, directors, shareholders, partners, members, agents, attorneys, accountants or advisors (collectively, “Representatives”) disclosed to the other party (the “Recipient”). Confidential Information shall not apply to any information which, at the time of disclosure (i) is already in the possession of Recipient, or is independently developed by persons not privy to the Confidential Information; or (ii) is or becomes publicly available through no wrongdoing or negligence of Recipient or any third party; or (iii) is required to be disclosed by Recipient by judicial or governmental regulatory action.
B. Recipient agrees that, except with the prior written consent of the Disclosing Party, Recipient will not (i) disclose the Confidential Information to any third party or permit any third party to use the Confidential Information other than Recipient’s third party consultants and advisors who have a legitimate need to know or access the Confidential Information and have agreed to be bound by the terms of this Agreement, and (ii) Recipient will not use the Confidential Information for purposes other than the fulfillment of its obligations under this Agreement. Recipient agrees that it will take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of the Disclosing Party in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information. Such measures shall include the degree of care that Recipient utilizes to protect its own Confidential Information of a similar nature, which shall be no less than reasonable care. Recipient agrees to immediately notify the Disclosing Party in writing of any misuse or misappropriation of the Confidential Information which may come to Recipient’s attention.
C. The parties acknowledge that, as between them, all Confidential Information received from the Disclosing Party, including all copies thereof in Recipient’s possession or control, in any media, is proprietary to and exclusively owned by the Disclosing Party. Nothing in this Agreement grants the Recipient any right, title or interest in or to any of the Disclosing Party’s Confidential Information. Recipient’s incorporation of the Disclosing Party’s Confidential Information into any of its own materials will not render Confidential Information non-confidential.
D. The parties acknowledge that any actual or threatened breach of this may cause irreparable, non-monetary injury to the Disclosing Party, the extent of which may be difficult to ascertain. Accordingly, the Disclosing Party is entitled to (but not required to) seek injunctive relief in addition to all remedies available to the disclosing party at law and/or in equity, to prevent or mitigate any breaches of this Agreement or damages that may otherwise result from those breaches.
5. REPRESENTATIONS, WARRANTIES, AND INDEMNITY
A. The Publisher represents and warrants that she/he/it has not granted and will not grant to any other party any right, permission, or license to use the Advertising Material.
B. The Publisher represents and warrants that she/he/it has the full right, power, and authority to enter into this Agreement and that it does not violate the rights of any third party.
C. The Publisher represents and warrants that Hall has made no warranty or representation, express or implied, statutory or otherwise, with respect to the Advertising Material, its products, or any Commission.
D. The Publisher represents and warrants that she/he/it will not advertise coupon codes from any non-affiliate marketing channel.
E. The Publisher represents and warrants that he/she/it has not engaged in any activity (criminal or otherwise) that could potentially have a negative impact on Hall or the marketing of its products.
F. The Publisher agrees to defend, indemnify, and hold Hall, and its affiliates and their respective officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred in connection with claims of third parties against Hall, which arise out of the Publisher’s breach of this Agreement. Publisher’s indemnity obligation shall survive the expiration and/or termination of this Agreement.
6. FTC DISCLOSURE REQUIRMENTS
The Federal Trade Commission in the United States (“FTC”) has guidelines aimed at increasing transparency between endorsers and consumers. Publisher’s participation in the ShareASale platform may establish a “material connection” according to FTC rules, creating an obligation for the Publisher to provide disclosure to consumers.
7. COMMISSION
As between Hall and Publisher, Publisher’s right to and Hall’s payment of any Commission will be determined in accordance with the ShareASale Agreement entered into between Hall and Awin, Inc.
8. TERMINATION
Either party may terminate this Agreement immediately upon written notice to the other party in the event of a breach of any provision of this Agreement by the other party.
9. RELATIONSHIP OF THE PARTIES
Nothing contained in this Agreement shall be construed as establishing an employer/employee, a partnership, or a joint venture relationship between Hall and the Publisher.
10 JURISDICTION AND DISPUTES
A. This Agreement shall be governed by the laws of Texas, without regard to conflict of law principles.
B. All disputes hereunder shall be resolved in the applicable state or federal courts of Dallas, Texas. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
