Hero Health, Inc.
Program Terms
HeroHealth.com Terms & Conditions
Hero Affiliate Program Agreement
Updated: 09/14/2023
This Hero Affiliate Program Agreement (the "Agreement") sets forth all of the terms and conditions that apply to your participation in our affiliate program (the "Program") for the www.herohealth.com Web site (the "Hero Site"). As used in this Agreement, the terms "we", "us", "our" and "Hero" refer to Hero, Inc., and the terms "you," "your" and "Partner" refer to you, the applicant for the Program.
This Agreement is a binding contract between you and us. BY APPLYING FOR AND/OR PARTICIPATING IN THE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT. If you are accepting this Agreement on behalf of your company, the terms "you," "your" and "Partner" when used below refer to your company.
Shareasale.com, Inc., an Illinois, USA corporation ("Shareasale.com") provides certain services to us in connection with the Program. You acknowledge that the Shareasale.com Affiliate Service Agreement available at https://www.shareasale.com/agreement.cfm ("Shareasale.com Agreement") also applies to your application for and participation in our Program, and that this Agreement is in addition to the Shareasale.com Agreement. In the event of a conflict between this Agreement and the Shareasale.com Agreement, the terms of this Agreement shall control.
1. Application Process; Approved Sites; Representations and Warranties. In order to participate in the Program, you must complete an application through Shareasale.com identifying your specific Web sites for which you are applying. We or Shareasale.com will notify you if your application is accepted or rejected. We reserve the right to reject any application in our sole discretion for any reason including, but not limited to, the reasons described in Section 2 below. If we reject your application, you may reapply. If we approve your application, our approval is limited to the specific Web site(s) in your application for which we or Shareasale.com indicate our approval in writing ("Approved Sites"). Unless specifically approved in writing as part of your application, our approval does not extend to mobile versions of your Approved Sites or any mobile applications.
By submitting an application for the Program, you represent, warrant, covenant and agree that (i) all information, data or material that you provide to us or Shareasale.com in connection with your application is true, complete and accurate, (ii) you have all necessary rights and authority to enter into this Agreement and perform your obligations hereunder, (iii) this Agreement will constitute a legal, binding and enforceable agreement against you in accordance with the terms and conditions herein, (iv) your execution and performance hereunder will not conflict with or result in a breach or violation of any other agreement, arrangement or understanding to which you are bound, and (v) to the extent that you are a licensed provider of healthcare services, that your promotion or endorsement of products and participation in the Program is in compliance with applicable state and federal law and that you will not offer any remuneration to recipients of your healthcare services in connection with the Program.
You further represent and warrant that: (i) the Approved Sites shall not and do not infringe, misappropriate, or violate any third party’s intellectual property, privacy, statutory contractual, legal, personal or other rights, or any Applicable Laws (as defined herein); (ii) the Approved Sites shall not contain any viruses, Trojan horses, or other malicious programs intended to damage, interfere with, surreptitiously intercept or expropriate any system, data or personal information; (iii) your use of the Hero Links (as defined below) on the Approved Sites shall not serve to mislead or deceive consumers (e.g. by masking referring URL information in affiliate links); and (iv) you shall not use the Approved Sites to collect any personal or anonymous information or data from Hero or consumers without obtaining the appropriate consents and providing the appropriate opt outs as required by Applicable Laws, and further shall immediately notify Hero in the event any unauthorized access to any such information or data is suspected.
2. Eligibility; Suitability of Partner Sites. Only fully operational Web sites that primarily serve a United States audience from U.S.-based or general domain names are eligible for participation in the Program. For the avoidance of doubt, your Approved Sites may not collect or process any data from residents of the E.U. You must be at least 18 years of age to join this Program. We will reject your application if we determine (in our sole discretion) that you or your Web site is unsuitable or inappropriate. Unsuitable or inappropriate sites include, but are not limited to, those that:
promote sexually explicit materials;
promote violence;
contain content that is threatening, harassing, offensive or obscene;
promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
promote illegal or unsafe activities, including without limitation illegal drugs, firearms or weapons, except as permitted via approved use of the Hero Links (defined below);
include, use, or display any of our trademarks, logos, slogans, trade names and service marks, including without limitation “Hero,” "Hero," "HeroHealth" "HeroHealth.com," (collectively "Hero Marks"), or any variations or misspellings of Hero Marks, in any URLs (for example, URLs such as "herohealth.mydomain.com", "herohealth-coupons.net", or "herohealthoutlet.mydomain.com" would be unsuitable);
contain any false, misleading, deceptive or disparaging statements about Hero or its products, services, employees, customers, partners, vendors or competitors,
violate any intellectual property rights; or
violate this Agreement, including without limitation any of the restrictions on use of Hero Content set forth in Section 4 below or the Trademark, Advertising and Search Engine restrictions in Section 10 below.
By participating in the Program you agree that you will not engage in any such activities. If we accept your application and thereafter determine (in our sole discretion) that you or your site is unsuitable or inappropriate, we may suspend your access to the Program and terminate this Agreement at any time. You agree to provide us with any information that we reasonably request to verify your compliance with this Agreement. We have the right (but not the obligation) in our sole and absolute discretion to monitor your Approved Sites and your participation in the Program from time to time to determine if you are in compliance with the terms of this Agreement.
3. Hero Links. Once you have been notified that an Approved Site has been accepted into the Program, we grant you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable and non-assignable license, during the term of this Agreement, to use Hero Links (as defined below) solely on your Approved Sites in compliance with this Agreement. "Hero Links" means links to Hero Site, in the format we or Shareasale.com provide them to you, placed on Approved Sites in compliance with this Agreement.
You agree to use Hero Links solely to direct end users to the Hero Site in accordance with this Agreement, and you agree not to link any Hero Link or other Hero Content (as defined below) to any page of any site other than the Hero Site. In particular, to the extent your use of Hero links is not clearly a paid advertising placement, you must include a clear and conspicuous disclosure statement alongside any Hero Links or any other affiliate placements permitted hereunder in order to make clear that such Hero Link is a paid advertising placement and/or sponsored material, and describing your financial relationship with us, in accordance with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, the FTC’s “Dot Com Disclosures” Guidelines, and any and all related regulatory guidance (e.g. the FTC’s Enforcement Policy Statement Regarding Deceptively Formatted Advertisements) (collectively, the “FTC Guides”). All such disclosures must be made prominently and conspicuously and adjacent to each post or Hero Link that triggers disclosure and must be in an easy-to-understand wording and typeface. The disclosure must be immediately visible to anyone who views the applicable post on the Approved Sites or on any other approved online platforms. It is expressly understood and agreed that Hero may (without limiting your obligations) be permitted to opine about all such affiliate marketing disclosures, provided that, without limiting your obligations hereunder, in the event of any disagreement between you and Hero with respect to the form of any such disclosures, Hero’s decision shall be final. By way of illustration, appropriate disclosures could consist of: “Sponsored advertising content for Hero.” Hero’s right to approve affiliate marketing placements and Hero Links as otherwise provided for under this Agreement shall not relieve you of your obligations under this Agreement. Further, you shall include appropriate disclosures in accordance with this Agreement in connection with any affiliate placements that Hero approves you to promote across partner and/or affiliate networks and shall regularly monitor whether such disclosures are being made, and shall use best efforts to cure the situation if appropriate disclosures are not being made.
Only Hero Links formatted in accordance with instructions from us or Shareasale.com will be tracked for purposes of calculating the Referral Fees described in Section 9 below. We have no obligation to pay any Referral Fees to you under any other circumstances.
You acknowledge that, by placing Hero Links within your Approved Sites, we may receive information from or about visitors to your site or communications between your Approved Sites and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, and our receipt, storage, use, and disclosure of, any and all such information, consistent with the policies and procedures set forth in our Privacy Policy posted on the Hero Site as we may update it from time to time. Further, you represent and warrant that you shall implement and maintain appropriate and comprehensive security, encryption, technical and organizational measures in accordance with the highest industry standards and in compliance with all applicable laws, rules and regulations, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you during the time you are a Program participant, including without limitation applicable data protection and privacy laws, regulations and self-regulatory guidance, the U.S. CAN-SPAM Act of 2003, and any other applicable laws, regulations, or other guidance governing online affiliate marketing (collectively, the “Applicable Laws”) to protect any data collected by or generated by the Hero Links on the Approved Sites against unauthorized or accidental loss, damage, modification or disclosures and further shall not take or fail to take any action that would put Hero in violation of such Applicable Laws.
4. Hero Content. In connection with the Program, we or Shareasale.com may provide you with access to Hero Links, a Data Feed (as defined below), Hero Marks, and other images, text, link formats, widgets, linking tools, product names, logos, banners, buttons, digital images, graphics, information and data (collectively, "Hero Content").
We hereby grant you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable and non-assignable license, during the term of this Agreement, to use and display Hero Content solely on Approved Sites solely for the purpose of generating sales of products on the Hero Site ("Products") in compliance with this Agreement and any requirements communicated to you by us or Shareasale.com from time to time. Any attempted sublicense or assignment of rights in Hero Content to any third party are null and void.
Without limiting the general requirements above in this Section 4, you specifically agree not to:
Add to, delete from or otherwise modify Hero Content in any way.
Use any Hero Content, including any name or likeness embodied in that Hero Content, in a manner that implies a person’s or company’s endorsement or sponsorship of, or commercial tie-in or other association with, any product, service, company, or cause.
Display or use Hero Content in connection with any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device.
Engage in any scraping, data extraction or data gathering on the Hero Site other than as expressly contemplated by this Agreement, or Use any Hero Content in connection with any client-side software application (e.g., a browser plug-in, helper object, toolbar, extension, or component or any other application executable or installable by an end user) on any device, including computers, mobile phones, tablets, or other handheld devices, unless we expressly otherwise agree in writing.
5. Responsibility for Approved Sites. You will be solely responsible for the development, operation, and maintenance of your Approved Sites and for all materials that appear on them, and we disclaim all liability for such matters. For example, you will be solely responsible for:
the technical operation of your Approved Site and all related equipment, ensuring the display of Hero Links or other Hero Content on your site does not violate any agreement between you and a third party, the accuracy and appropriateness of materials posted on your site (including, among other things, all materials related to Products sold on the Hero Sites and any information you include within, or associate with, Hero Links), ensuring that materials posted on Approved Sites do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), ensuring that materials posted on Approved Sites are not libelous or otherwise illegal, and ensuring that Approved Sites accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors' browsers, and how visitors may opt-out of the collection of their personal information.
6. Orders; Operation of Hero Site. We are solely responsible for all pricing, merchandising, order processing, order fulfillment, shipping, returns and all other aspects of the Hero Site and the sale of Products from the Hero Site. You acknowledge and agree that we have no obligation to accept any orders for Products by customers who followed Hero Links from your Approved Sites. We make no guarantee of any amounts that you may or may not receive under this Agreement. For orders we do accept, we are responsible for all aspects of order processing and fulfillment. You further acknowledge and agree that you do not have any authority to make or accept any offer or commitment on behalf of us, and that we cannot, and do not, guarantee the availability of any Products or services offered on the Hero Site.
Customers who access the Hero Site are our customers. Accordingly, all of our applicable rules, policies and procedures concerning orders, returns, refunds, customer service, privacy and other terms of use and sale will apply to customers who make purchases after following an Hero Link from an Approved Site to the Hero Site. As between the parties, all information obtained through the use of the Hero Site shall be our exclusive property. We may change our policies and operating procedures at any time in our sole discretion. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product or the error-free or uninterrupted operation of the Hero Site.
We will track sales eligible for Referral Fees under Section 9 using a tracking mechanism selected by us in our sole discretion, and reports summarizing this sales activity will be available to you through Shareasale.com. The form, content, and frequency of the reports may vary from time to time in our and Shareasale.com’s reasonable discretion. We are not responsible for changes that Shareasale.com may make in their reporting format, timing, or types of reports available to participants in our Program. To permit accurate tracking, reporting and fee accrual, you must ensure that the Hero Links between your Approved Sites and our Hero Sites are properly formatted. We are not responsible for improperly formatted links. In addition, we are unable to track or provide you credit for sales from customers that are referred to us with browsers that have been set to block cookies.
7. Referral Fees. During the term of this Agreement, we will pay you a referral fee (the "Referral Fee") equal to the percentage of Net Revenue set forth in the Program materials posted on Shareasale.com site or otherwise provided by us ("Program Materials"). We reserve the right, at our sole discretion, to change or modify the Referral Fees we pay at any time. For purposes of this Agreement, "Net Revenue" means amounts we actually receive (not including portions of payment made through the redemption of coupons, credits or gift cards) from customers for Qualifying Sales, less taxes, shipping and handling charges, gift wrapping and other value-added service charges, returns, refunds, and chargebacks. Hero Corporate and Group Sales purchases are NOT eligible for Referral Fees (commission). A "Qualifying Sale" means the first sale of one or more Products in a transaction that results from the customer following an Hero Link from an Approved Site to an Hero Site, where the sale is made during the time period set forth in the Program Materials.
All reasonable determinations of whether a sale of Products is a Qualifying Sale made by us and/or Shareasale.com will be final and binding.
We pay Referral Fees on a monthly basis, less any taxes or other amounts that we may be required by law to withhold. No interest will be paid on any amounts held by us. If a payment of Referral Fees relates to Products later returned by a customer (or Products for which we are otherwise unable to collect or required to refund the corresponding Net Revenue), the applicable Referral Fees will be deducted from the next applicable monthly payment. If any portion of such Referral Fees cannot be recovered through a deduction, we will invoice you for such amount and you agree to pay this amount within 30 days after receipt of such invoice. Upon termination of this Agreement (unless otherwise provided herein), we will pay you the total amount of Referral Fees then owed to you as of the termination date. This final payment of Referral Fees may be withheld by us for a reasonable period of time to ensure that the correct amount is to be paid after making any adjustments that may be required, including, but not limited to, adjustments for returns.
You acknowledge and agree that we will not be obligated to pay any Referral Fees unless we actually ship the applicable Product from a Qualifying Sale and receive full payment for it.
You agree not to engage in, and you acknowledge that we will not be responsible to pay any Referral Fees in connection with, any of the following:
attempting to intercept or redirect potential customers from the Hero Site or from any other Web site participating in the Program;
cloaking, hiding, spoofing, or otherwise obscuring the URL of your Approved Site containing Hero Links (including by use of a redirecting page) such that we cannot reasonably determine the site or application from which a customer clicks an Hero Link, or otherwise manipulating cookies in order to gain Referral Fees, including by employing so-called "cookie stuffing," "cookie spoofing" or similar methods; or engage in or encourage anyone to engage in "gift card recycling" (i.e., using gift cards to purchase additional gift cards in order to generate affiliate commission); Orders made through incentive or other referral programs are not eligible for Referral Fees.
8. Promotion Codes & Coupons. You may not, without our prior written consent, utilize any promotion, promotion code, coupon, or other promotional opportunity that is not specifically authorized in the Program Materials or provided to you by us or Shareasale.com in connection with the Program. You agree not to display on your Approved Sites, and we are not responsible to honor, any expired or unauthorized coupons or coupon codes.
9. Trademark, Advertising and Search Engine Restrictions. You agree not to take any action that could reasonably cause any customer confusion as to our relationship with you, and you will not display or otherwise use Hero Marks except as expressly permitted in this Agreement. Without limiting these general requirements, you also specifically agree that:
you will not include any Hero Marks, or any variation or misspelling thereof, in any domain name, URL, or similar identifier used by you, your Approved Sites will not copy or resemble the look, feel or content of the Hero Site or create any impression that your Web sites or applications are part of the Hero Site, you will not post or serve any Hero Links or other content promoting the Hero Site or Products within any pop-up or pop-under windows, transitional page ads, or layer ads around or in conjunction with the display of any site that is not your Approved Site; and you will not generate or send any email messages, text or mobile messages, or other electronic messages using or containing Hero Marks, Hero Links or other Hero Content, or send any electronic messages that in any way suggest or imply (including without limitation, via the return address, subject heading, header information or message contents) that we are the sender or sponsor of such message. Without limiting our other rights, upon our request you will cause any Search Engine to exclude Hero Marks from keywords used to display your advertising content in association with search results (e.g., so-called negative keyword bidding) if the Search Engine offers such exclusion capabilities. "Search Engine" means any search engine, portal, sponsored advertising service, or other search or referral service any other search engine, portal, sponsored advertising service, or other search or referral service (including without limitation Google, Yahoo and Bing), or any site that participates in any of their respective networks. You also agree to the following additional Search Engine advertising restrictions: (i) all advertisements for your Approved Sites must be directed to Approved Sites or a page within your Approved Sites, (ii) none of your advertisements may link directly to the Hero Site or any page within the Hero Site, and (iii) you will not display any Hero Site URL as the URL in your advertisements.
10. Limitation of Liability. WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, HERO CONTENT OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT, HERO CONTENT OR THE PROGRAM, WILL NOT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY. NEITHER WE NOR SHAREASALE.COM WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (1) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (2) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (3) ANY TERMINATION OF THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
11. Intellectual Property. We and our licensors reserve all right, title and interest in and to the Program, Hero Marks, Hero Links, the Data Feed, other Hero Content, the Hero Site, any technology and software used to provide the foregoing, and all intellectual property and proprietary rights therein. Except for the limited licenses granted in this Agreement, nothing in this Agreement will license or convey to anyone, including you, any of our intellectual property or proprietary rights.
12. Term & Termination. This Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your Web sites, all links to the Hero Site, Hero Marks, information from the Data Feed, and other Hero Content. You are eligible to earn referral fees only on Qualifying Sales that occur during the term. Referral Fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. Finally, if you are in violation of Sections 2, 4, 8, 12 or 13 when this Agreement is terminated, you acknowledge that we will not be obligated to pay any Referral Fees that are accrued but unpaid as of termination.
13. Confidentiality. In connection with the Program, we and Shareasale.com may make non-public information available to you, including without limitation customer information, sales information, and details about the Program ("Confidential Information"). You will use Confidential Information only as necessary in connection with the Program, will not disclose Confidential Information to any third party, and will use reasonable care to protect Confidential Information in your possession from disclosure. Upon termination of this Agreement, you will return all Confidential Information to us or Shareasale.com or, if we request, destroy the Confidential Information and, upon our request, will certify such return or destruction in writing.
14. Compliance with Laws. As a condition to your participation in the Program, you agree that you will comply with all Applicable Laws (as defined above).
15. Indemnity. At your own cost and expense, you will indemnify, defend and hold harmless Hero and Shareasale.com, and their respective corporate affiliates, directors, officers, employees, agents, successors and assigns, from and against any claim, suit, action, judgment, liability, loss, cost, expenses and other damages, including reasonable attorney's fees, that is based upon or arises in connection with (i) any breach or alleged breach of your representations, warranties, covenants agreements, or obligations under this Agreement, your failure to make any required disclosures in accordance with the FTC Guides as provided herein, (ii) the development, operation, maintenance, and contents of your Approved Sites or any other Web site where you place Hero Content, (iii) your failure or alleged failure to comply with any Applicable Laws, (iv) any other information, materials or data provided by you or (v) any actual or alleged wrongful or negligent act or omission by you in connection with the Program.
16. Disclaimer. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PROGRAM, THE HERO SITE, ANY PRODUCTS OFFERED ON THE HERO SITE, THE HERO LINKS, THE DATA FEED, ANY OTHER HERO CONTENT, ALL OF WHICH ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE PROGRAM, THE HERO SITE, ANY PRODUCTS OFFERED ON THE HERO SITE, THE HERO LINKS, THE DATA FEED, ANY OTHER HERO CONTENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE THE PROGRAM OR ANY OF ITS FEATURES AT ANY TIME. WE DO NOT WARRANT THAT THE PROGRAM, HERO SITE OR HERO CONTENT WILL CONTINUE TO BE PROVIDED OR WILL FUNCTION AS DESCRIBED, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS.
17. Relationship of the Parties; Publicity. You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
We may make Hero Content available to you that identifies your Approved Site as a Program participant. You may display this Hero Content on your Approved Site in compliance with the instructions provided by us or Shareasale.com. Otherwise, you will not issue any press release or make any other public communication with respect to this Agreement, your use of Hero Content, or your participation in the Program, and you will make no representations regarding the relationship between us, Shareasale.com and you. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
18. Modifications to this Agreement. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the Hero Site. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE HERO SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
19. Miscellaneous. All notices under this Agreement must be in writing. Notices that we provide to you may be given to the email address you provide when you apply for the Program, or a successor email address you provide to us or Shareasale.com from time to time, or electronically via an interface or mechanism provided by Shareasale.com for Program participants. This Agreement will be governed by and construed in accordance with the substantive laws of the State of New York, excluding its conflict of laws principles. This Agreement and any dispute arising in connection with this Agreement must be brought in the federal or state courts located in New York County, New York. Our performance under this Agreement shall be excused to the extent that such performance is hindered, delayed or made commercially impractical by causes beyond our reasonable control. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement. You may not assign this Agreement or any of your rights, or delegate any of your obligations under this Agreement, by operation of law or otherwise, without our prior written consent, and any such attempted assignment shall be void. Subject to such restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement. This Agreement, together with the Program Materials referenced herein, represents the complete agreement and understanding between us and you with respect to the Program and supersedes any other oral or written communications or understandings between us and you regarding the Program. No amendment or modification to this Agreement will be binding upon us unless agreed to by an authorized representative of us.
Hero Affiliate Program Agreement
Updated: 09/14/2023
This Hero Affiliate Program Agreement (the "Agreement") sets forth all of the terms and conditions that apply to your participation in our affiliate program (the "Program") for the www.herohealth.com Web site (the "Hero Site"). As used in this Agreement, the terms "we", "us", "our" and "Hero" refer to Hero, Inc., and the terms "you," "your" and "Partner" refer to you, the applicant for the Program.
This Agreement is a binding contract between you and us. BY APPLYING FOR AND/OR PARTICIPATING IN THE PROGRAM, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU REPRESENT AND WARRANT TO US THAT YOU HAVE THE AUTHORITY TO BIND YOUR COMPANY TO THIS AGREEMENT. If you are accepting this Agreement on behalf of your company, the terms "you," "your" and "Partner" when used below refer to your company.
Shareasale.com, Inc., an Illinois, USA corporation ("Shareasale.com") provides certain services to us in connection with the Program. You acknowledge that the Shareasale.com Affiliate Service Agreement available at https://www.shareasale.com/agreement.cfm ("Shareasale.com Agreement") also applies to your application for and participation in our Program, and that this Agreement is in addition to the Shareasale.com Agreement. In the event of a conflict between this Agreement and the Shareasale.com Agreement, the terms of this Agreement shall control.
1. Application Process; Approved Sites; Representations and Warranties. In order to participate in the Program, you must complete an application through Shareasale.com identifying your specific Web sites for which you are applying. We or Shareasale.com will notify you if your application is accepted or rejected. We reserve the right to reject any application in our sole discretion for any reason including, but not limited to, the reasons described in Section 2 below. If we reject your application, you may reapply. If we approve your application, our approval is limited to the specific Web site(s) in your application for which we or Shareasale.com indicate our approval in writing ("Approved Sites"). Unless specifically approved in writing as part of your application, our approval does not extend to mobile versions of your Approved Sites or any mobile applications.
By submitting an application for the Program, you represent, warrant, covenant and agree that (i) all information, data or material that you provide to us or Shareasale.com in connection with your application is true, complete and accurate, (ii) you have all necessary rights and authority to enter into this Agreement and perform your obligations hereunder, (iii) this Agreement will constitute a legal, binding and enforceable agreement against you in accordance with the terms and conditions herein, (iv) your execution and performance hereunder will not conflict with or result in a breach or violation of any other agreement, arrangement or understanding to which you are bound, and (v) to the extent that you are a licensed provider of healthcare services, that your promotion or endorsement of products and participation in the Program is in compliance with applicable state and federal law and that you will not offer any remuneration to recipients of your healthcare services in connection with the Program.
You further represent and warrant that: (i) the Approved Sites shall not and do not infringe, misappropriate, or violate any third party’s intellectual property, privacy, statutory contractual, legal, personal or other rights, or any Applicable Laws (as defined herein); (ii) the Approved Sites shall not contain any viruses, Trojan horses, or other malicious programs intended to damage, interfere with, surreptitiously intercept or expropriate any system, data or personal information; (iii) your use of the Hero Links (as defined below) on the Approved Sites shall not serve to mislead or deceive consumers (e.g. by masking referring URL information in affiliate links); and (iv) you shall not use the Approved Sites to collect any personal or anonymous information or data from Hero or consumers without obtaining the appropriate consents and providing the appropriate opt outs as required by Applicable Laws, and further shall immediately notify Hero in the event any unauthorized access to any such information or data is suspected.
2. Eligibility; Suitability of Partner Sites. Only fully operational Web sites that primarily serve a United States audience from U.S.-based or general domain names are eligible for participation in the Program. For the avoidance of doubt, your Approved Sites may not collect or process any data from residents of the E.U. You must be at least 18 years of age to join this Program. We will reject your application if we determine (in our sole discretion) that you or your Web site is unsuitable or inappropriate. Unsuitable or inappropriate sites include, but are not limited to, those that:
promote sexually explicit materials;
promote violence;
contain content that is threatening, harassing, offensive or obscene;
promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
promote illegal or unsafe activities, including without limitation illegal drugs, firearms or weapons, except as permitted via approved use of the Hero Links (defined below);
include, use, or display any of our trademarks, logos, slogans, trade names and service marks, including without limitation “Hero,” "Hero," "HeroHealth" "HeroHealth.com," (collectively "Hero Marks"), or any variations or misspellings of Hero Marks, in any URLs (for example, URLs such as "herohealth.mydomain.com", "herohealth-coupons.net", or "herohealthoutlet.mydomain.com" would be unsuitable);
contain any false, misleading, deceptive or disparaging statements about Hero or its products, services, employees, customers, partners, vendors or competitors,
violate any intellectual property rights; or
violate this Agreement, including without limitation any of the restrictions on use of Hero Content set forth in Section 4 below or the Trademark, Advertising and Search Engine restrictions in Section 10 below.
By participating in the Program you agree that you will not engage in any such activities. If we accept your application and thereafter determine (in our sole discretion) that you or your site is unsuitable or inappropriate, we may suspend your access to the Program and terminate this Agreement at any time. You agree to provide us with any information that we reasonably request to verify your compliance with this Agreement. We have the right (but not the obligation) in our sole and absolute discretion to monitor your Approved Sites and your participation in the Program from time to time to determine if you are in compliance with the terms of this Agreement.
3. Hero Links. Once you have been notified that an Approved Site has been accepted into the Program, we grant you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable and non-assignable license, during the term of this Agreement, to use Hero Links (as defined below) solely on your Approved Sites in compliance with this Agreement. "Hero Links" means links to Hero Site, in the format we or Shareasale.com provide them to you, placed on Approved Sites in compliance with this Agreement.
You agree to use Hero Links solely to direct end users to the Hero Site in accordance with this Agreement, and you agree not to link any Hero Link or other Hero Content (as defined below) to any page of any site other than the Hero Site. In particular, to the extent your use of Hero links is not clearly a paid advertising placement, you must include a clear and conspicuous disclosure statement alongside any Hero Links or any other affiliate placements permitted hereunder in order to make clear that such Hero Link is a paid advertising placement and/or sponsored material, and describing your financial relationship with us, in accordance with the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising, the FTC’s “Dot Com Disclosures” Guidelines, and any and all related regulatory guidance (e.g. the FTC’s Enforcement Policy Statement Regarding Deceptively Formatted Advertisements) (collectively, the “FTC Guides”). All such disclosures must be made prominently and conspicuously and adjacent to each post or Hero Link that triggers disclosure and must be in an easy-to-understand wording and typeface. The disclosure must be immediately visible to anyone who views the applicable post on the Approved Sites or on any other approved online platforms. It is expressly understood and agreed that Hero may (without limiting your obligations) be permitted to opine about all such affiliate marketing disclosures, provided that, without limiting your obligations hereunder, in the event of any disagreement between you and Hero with respect to the form of any such disclosures, Hero’s decision shall be final. By way of illustration, appropriate disclosures could consist of: “Sponsored advertising content for Hero.” Hero’s right to approve affiliate marketing placements and Hero Links as otherwise provided for under this Agreement shall not relieve you of your obligations under this Agreement. Further, you shall include appropriate disclosures in accordance with this Agreement in connection with any affiliate placements that Hero approves you to promote across partner and/or affiliate networks and shall regularly monitor whether such disclosures are being made, and shall use best efforts to cure the situation if appropriate disclosures are not being made.
Only Hero Links formatted in accordance with instructions from us or Shareasale.com will be tracked for purposes of calculating the Referral Fees described in Section 9 below. We have no obligation to pay any Referral Fees to you under any other circumstances.
You acknowledge that, by placing Hero Links within your Approved Sites, we may receive information from or about visitors to your site or communications between your Approved Sites and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, and our receipt, storage, use, and disclosure of, any and all such information, consistent with the policies and procedures set forth in our Privacy Policy posted on the Hero Site as we may update it from time to time. Further, you represent and warrant that you shall implement and maintain appropriate and comprehensive security, encryption, technical and organizational measures in accordance with the highest industry standards and in compliance with all applicable laws, rules and regulations, licenses, permits, judgments, decisions or other requirements of any governmental authority that has jurisdiction over you during the time you are a Program participant, including without limitation applicable data protection and privacy laws, regulations and self-regulatory guidance, the U.S. CAN-SPAM Act of 2003, and any other applicable laws, regulations, or other guidance governing online affiliate marketing (collectively, the “Applicable Laws”) to protect any data collected by or generated by the Hero Links on the Approved Sites against unauthorized or accidental loss, damage, modification or disclosures and further shall not take or fail to take any action that would put Hero in violation of such Applicable Laws.
4. Hero Content. In connection with the Program, we or Shareasale.com may provide you with access to Hero Links, a Data Feed (as defined below), Hero Marks, and other images, text, link formats, widgets, linking tools, product names, logos, banners, buttons, digital images, graphics, information and data (collectively, "Hero Content").
We hereby grant you a limited, revocable, non-exclusive, non-transferable, non-sublicenseable and non-assignable license, during the term of this Agreement, to use and display Hero Content solely on Approved Sites solely for the purpose of generating sales of products on the Hero Site ("Products") in compliance with this Agreement and any requirements communicated to you by us or Shareasale.com from time to time. Any attempted sublicense or assignment of rights in Hero Content to any third party are null and void.
Without limiting the general requirements above in this Section 4, you specifically agree not to:
Add to, delete from or otherwise modify Hero Content in any way.
Use any Hero Content, including any name or likeness embodied in that Hero Content, in a manner that implies a person’s or company’s endorsement or sponsorship of, or commercial tie-in or other association with, any product, service, company, or cause.
Display or use Hero Content in connection with any spyware, malware, virus, worm, Trojan horse, or other malicious or harmful code, or any software application not expressly and knowingly authorized by users prior to being downloaded or installed on their computer or other electronic device.
Engage in any scraping, data extraction or data gathering on the Hero Site other than as expressly contemplated by this Agreement, or Use any Hero Content in connection with any client-side software application (e.g., a browser plug-in, helper object, toolbar, extension, or component or any other application executable or installable by an end user) on any device, including computers, mobile phones, tablets, or other handheld devices, unless we expressly otherwise agree in writing.
5. Responsibility for Approved Sites. You will be solely responsible for the development, operation, and maintenance of your Approved Sites and for all materials that appear on them, and we disclaim all liability for such matters. For example, you will be solely responsible for:
the technical operation of your Approved Site and all related equipment, ensuring the display of Hero Links or other Hero Content on your site does not violate any agreement between you and a third party, the accuracy and appropriateness of materials posted on your site (including, among other things, all materials related to Products sold on the Hero Sites and any information you include within, or associate with, Hero Links), ensuring that materials posted on Approved Sites do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights), ensuring that materials posted on Approved Sites are not libelous or otherwise illegal, and ensuring that Approved Sites accurately and adequately discloses, either through a privacy policy or otherwise, how you collect, use, store, and disclose data collected from visitors, including, where applicable, that third parties (including advertisers) may serve content and/or advertisements and collect information directly from visitors and may place or recognize cookies on visitors' browsers, and how visitors may opt-out of the collection of their personal information.
6. Orders; Operation of Hero Site. We are solely responsible for all pricing, merchandising, order processing, order fulfillment, shipping, returns and all other aspects of the Hero Site and the sale of Products from the Hero Site. You acknowledge and agree that we have no obligation to accept any orders for Products by customers who followed Hero Links from your Approved Sites. We make no guarantee of any amounts that you may or may not receive under this Agreement. For orders we do accept, we are responsible for all aspects of order processing and fulfillment. You further acknowledge and agree that you do not have any authority to make or accept any offer or commitment on behalf of us, and that we cannot, and do not, guarantee the availability of any Products or services offered on the Hero Site.
Customers who access the Hero Site are our customers. Accordingly, all of our applicable rules, policies and procedures concerning orders, returns, refunds, customer service, privacy and other terms of use and sale will apply to customers who make purchases after following an Hero Link from an Approved Site to the Hero Site. As between the parties, all information obtained through the use of the Hero Site shall be our exclusive property. We may change our policies and operating procedures at any time in our sole discretion. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product or the error-free or uninterrupted operation of the Hero Site.
We will track sales eligible for Referral Fees under Section 9 using a tracking mechanism selected by us in our sole discretion, and reports summarizing this sales activity will be available to you through Shareasale.com. The form, content, and frequency of the reports may vary from time to time in our and Shareasale.com’s reasonable discretion. We are not responsible for changes that Shareasale.com may make in their reporting format, timing, or types of reports available to participants in our Program. To permit accurate tracking, reporting and fee accrual, you must ensure that the Hero Links between your Approved Sites and our Hero Sites are properly formatted. We are not responsible for improperly formatted links. In addition, we are unable to track or provide you credit for sales from customers that are referred to us with browsers that have been set to block cookies.
7. Referral Fees. During the term of this Agreement, we will pay you a referral fee (the "Referral Fee") equal to the percentage of Net Revenue set forth in the Program materials posted on Shareasale.com site or otherwise provided by us ("Program Materials"). We reserve the right, at our sole discretion, to change or modify the Referral Fees we pay at any time. For purposes of this Agreement, "Net Revenue" means amounts we actually receive (not including portions of payment made through the redemption of coupons, credits or gift cards) from customers for Qualifying Sales, less taxes, shipping and handling charges, gift wrapping and other value-added service charges, returns, refunds, and chargebacks. Hero Corporate and Group Sales purchases are NOT eligible for Referral Fees (commission). A "Qualifying Sale" means the first sale of one or more Products in a transaction that results from the customer following an Hero Link from an Approved Site to an Hero Site, where the sale is made during the time period set forth in the Program Materials.
All reasonable determinations of whether a sale of Products is a Qualifying Sale made by us and/or Shareasale.com will be final and binding.
We pay Referral Fees on a monthly basis, less any taxes or other amounts that we may be required by law to withhold. No interest will be paid on any amounts held by us. If a payment of Referral Fees relates to Products later returned by a customer (or Products for which we are otherwise unable to collect or required to refund the corresponding Net Revenue), the applicable Referral Fees will be deducted from the next applicable monthly payment. If any portion of such Referral Fees cannot be recovered through a deduction, we will invoice you for such amount and you agree to pay this amount within 30 days after receipt of such invoice. Upon termination of this Agreement (unless otherwise provided herein), we will pay you the total amount of Referral Fees then owed to you as of the termination date. This final payment of Referral Fees may be withheld by us for a reasonable period of time to ensure that the correct amount is to be paid after making any adjustments that may be required, including, but not limited to, adjustments for returns.
You acknowledge and agree that we will not be obligated to pay any Referral Fees unless we actually ship the applicable Product from a Qualifying Sale and receive full payment for it.
You agree not to engage in, and you acknowledge that we will not be responsible to pay any Referral Fees in connection with, any of the following:
attempting to intercept or redirect potential customers from the Hero Site or from any other Web site participating in the Program;
cloaking, hiding, spoofing, or otherwise obscuring the URL of your Approved Site containing Hero Links (including by use of a redirecting page) such that we cannot reasonably determine the site or application from which a customer clicks an Hero Link, or otherwise manipulating cookies in order to gain Referral Fees, including by employing so-called "cookie stuffing," "cookie spoofing" or similar methods; or engage in or encourage anyone to engage in "gift card recycling" (i.e., using gift cards to purchase additional gift cards in order to generate affiliate commission); Orders made through incentive or other referral programs are not eligible for Referral Fees.
8. Promotion Codes & Coupons. You may not, without our prior written consent, utilize any promotion, promotion code, coupon, or other promotional opportunity that is not specifically authorized in the Program Materials or provided to you by us or Shareasale.com in connection with the Program. You agree not to display on your Approved Sites, and we are not responsible to honor, any expired or unauthorized coupons or coupon codes.
9. Trademark, Advertising and Search Engine Restrictions. You agree not to take any action that could reasonably cause any customer confusion as to our relationship with you, and you will not display or otherwise use Hero Marks except as expressly permitted in this Agreement. Without limiting these general requirements, you also specifically agree that:
you will not include any Hero Marks, or any variation or misspelling thereof, in any domain name, URL, or similar identifier used by you, your Approved Sites will not copy or resemble the look, feel or content of the Hero Site or create any impression that your Web sites or applications are part of the Hero Site, you will not post or serve any Hero Links or other content promoting the Hero Site or Products within any pop-up or pop-under windows, transitional page ads, or layer ads around or in conjunction with the display of any site that is not your Approved Site; and you will not generate or send any email messages, text or mobile messages, or other electronic messages using or containing Hero Marks, Hero Links or other Hero Content, or send any electronic messages that in any way suggest or imply (including without limitation, via the return address, subject heading, header information or message contents) that we are the sender or sponsor of such message. Without limiting our other rights, upon our request you will cause any Search Engine to exclude Hero Marks from keywords used to display your advertising content in association with search results (e.g., so-called negative keyword bidding) if the Search Engine offers such exclusion capabilities. "Search Engine" means any search engine, portal, sponsored advertising service, or other search or referral service any other search engine, portal, sponsored advertising service, or other search or referral service (including without limitation Google, Yahoo and Bing), or any site that participates in any of their respective networks. You also agree to the following additional Search Engine advertising restrictions: (i) all advertisements for your Approved Sites must be directed to Approved Sites or a page within your Approved Sites, (ii) none of your advertisements may link directly to the Hero Site or any page within the Hero Site, and (iii) you will not display any Hero Site URL as the URL in your advertisements.
10. Limitation of Liability. WE WILL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING ANY LOSS OF REVENUE, PROFITS, GOODWILL, USE, OR DATA) ARISING IN CONNECTION WITH THIS AGREEMENT, HERO CONTENT OR THE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING IN CONNECTION WITH THIS AGREEMENT, HERO CONTENT OR THE PROGRAM, WILL NOT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE MOST RECENT CLAIM OF LIABILITY. NEITHER WE NOR SHAREASALE.COM WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH (1) ANY LOSS OF PROSPECTIVE PROFITS OR REVENUE, ANTICIPATED SALES, GOODWILL, OR OTHER BENEFITS, (2) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM, OR (3) ANY TERMINATION OF THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM.
11. Intellectual Property. We and our licensors reserve all right, title and interest in and to the Program, Hero Marks, Hero Links, the Data Feed, other Hero Content, the Hero Site, any technology and software used to provide the foregoing, and all intellectual property and proprietary rights therein. Except for the limited licenses granted in this Agreement, nothing in this Agreement will license or convey to anyone, including you, any of our intellectual property or proprietary rights.
12. Term & Termination. This Agreement will begin upon our acceptance of your Program application and will end when terminated by either party. Either you or we may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination. Upon the termination of this Agreement for any reason, you will immediately cease use of, and remove from your Web sites, all links to the Hero Site, Hero Marks, information from the Data Feed, and other Hero Content. You are eligible to earn referral fees only on Qualifying Sales that occur during the term. Referral Fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid. Finally, if you are in violation of Sections 2, 4, 8, 12 or 13 when this Agreement is terminated, you acknowledge that we will not be obligated to pay any Referral Fees that are accrued but unpaid as of termination.
13. Confidentiality. In connection with the Program, we and Shareasale.com may make non-public information available to you, including without limitation customer information, sales information, and details about the Program ("Confidential Information"). You will use Confidential Information only as necessary in connection with the Program, will not disclose Confidential Information to any third party, and will use reasonable care to protect Confidential Information in your possession from disclosure. Upon termination of this Agreement, you will return all Confidential Information to us or Shareasale.com or, if we request, destroy the Confidential Information and, upon our request, will certify such return or destruction in writing.
14. Compliance with Laws. As a condition to your participation in the Program, you agree that you will comply with all Applicable Laws (as defined above).
15. Indemnity. At your own cost and expense, you will indemnify, defend and hold harmless Hero and Shareasale.com, and their respective corporate affiliates, directors, officers, employees, agents, successors and assigns, from and against any claim, suit, action, judgment, liability, loss, cost, expenses and other damages, including reasonable attorney's fees, that is based upon or arises in connection with (i) any breach or alleged breach of your representations, warranties, covenants agreements, or obligations under this Agreement, your failure to make any required disclosures in accordance with the FTC Guides as provided herein, (ii) the development, operation, maintenance, and contents of your Approved Sites or any other Web site where you place Hero Content, (iii) your failure or alleged failure to comply with any Applicable Laws, (iv) any other information, materials or data provided by you or (v) any actual or alleged wrongful or negligent act or omission by you in connection with the Program.
16. Disclaimer. WE MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PROGRAM, THE HERO SITE, ANY PRODUCTS OFFERED ON THE HERO SITE, THE HERO LINKS, THE DATA FEED, ANY OTHER HERO CONTENT, ALL OF WHICH ARE PROVIDED "AS IS." TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES WITH RESPECT TO THE PROGRAM, THE HERO SITE, ANY PRODUCTS OFFERED ON THE HERO SITE, THE HERO LINKS, THE DATA FEED, ANY OTHER HERO CONTENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, PERFORMANCE, OR TRADE USAGE. WE MAY DISCONTINUE THE PROGRAM OR ANY OF ITS FEATURES AT ANY TIME. WE DO NOT WARRANT THAT THE PROGRAM, HERO SITE OR HERO CONTENT WILL CONTINUE TO BE PROVIDED OR WILL FUNCTION AS DESCRIBED, OR WILL BE UNINTERRUPTED, ACCURATE, ERROR FREE, OR FREE OF HARMFUL COMPONENTS.
17. Relationship of the Parties; Publicity. You and we are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or otherwise, that reasonably would contradict anything in this Section.
We may make Hero Content available to you that identifies your Approved Site as a Program participant. You may display this Hero Content on your Approved Site in compliance with the instructions provided by us or Shareasale.com. Otherwise, you will not issue any press release or make any other public communication with respect to this Agreement, your use of Hero Content, or your participation in the Program, and you will make no representations regarding the relationship between us, Shareasale.com and you. In addition, you may not in any manner misrepresent or embellish the relationship between us and you, or express or imply any relationship or affiliation between us and you or any other person or entity except as expressly permitted by this Agreement.
18. Modifications to this Agreement. We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the Hero Site. Modifications may include, for example, changes in the scope of available referral fees, referral fee schedules, payment procedures, and Program rules. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE HERO SITE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.
19. Miscellaneous. All notices under this Agreement must be in writing. Notices that we provide to you may be given to the email address you provide when you apply for the Program, or a successor email address you provide to us or Shareasale.com from time to time, or electronically via an interface or mechanism provided by Shareasale.com for Program participants. This Agreement will be governed by and construed in accordance with the substantive laws of the State of New York, excluding its conflict of laws principles. This Agreement and any dispute arising in connection with this Agreement must be brought in the federal or state courts located in New York County, New York. Our performance under this Agreement shall be excused to the extent that such performance is hindered, delayed or made commercially impractical by causes beyond our reasonable control. The titles and headings of the various sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended for any other purpose whatsoever, or to explain, modify, or place any construction upon or on any of the provisions of this Agreement. You may not assign this Agreement or any of your rights, or delegate any of your obligations under this Agreement, by operation of law or otherwise, without our prior written consent, and any such attempted assignment shall be void. Subject to such restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement. This Agreement, together with the Program Materials referenced herein, represents the complete agreement and understanding between us and you with respect to the Program and supersedes any other oral or written communications or understandings between us and you regarding the Program. No amendment or modification to this Agreement will be binding upon us unless agreed to by an authorized representative of us.