This Affiliate Agreement (“Agreement”) contains the complete terms and conditions between us, SOLACE BRANDS, INC. DBA HATH (“HATH”) and you, regarding your application to and participation in, the HATH Affiliate Program (the “Affiliate Program”) as an affiliate of HATH (an “Affiliate”), and the establishment of links from your website to our website, https://www.hathcbd.com.
BY SUBMITTING AN APPLICATION TO JOIN OR BY PARTICIPATING IN THE AFFILIATE PROGRAM, YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND THE HATH TERMS AND CONDITIONS AND THAT YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.
“Affiliate” – The business, individual, or entity applying to or participating in the Affiliate Program, or that displays HATH’s products and Services and/or promotions on its website, or other means, using an affiliate tracking code in exchange for receiving a commission from HATH for sales directly resulting from such display.
“Affiliate Site” – The Affiliate’s website which displays HATH’s Products and Services and/or promotions.
“HATH’s Products and Services” – Web hosting and related products and services that are available for purchase from HATH.
“Commission Fees” – The amount you will be paid for each Qualified Purchase by a Referred Customer that you refer to HATH subject to the Commission Threshold and pursuant to the terms of this Agreement.
“Commission Threshold” – The amount of Commission Fees an Affiliate must accrue prior to receiving a payment from HATH.
“Qualified Purchase” – A sale of HATH Products and Services by HATH, with a term of twelve (12) months or longer, to a Referred Customer that is not excluded under Section 7.
“Referred Customer” – Each new and unique customer referred from Affiliate through a Link (as defined in Section 3) that provides valid account and billing information.
“Registration Form” – Any and all order forms or other signup or acceptance form submitted by a customer to purchase HATH’s Products and Services.
Use of Links. If you qualify and agree to participate as an Affiliate, we will make a variety of graphic and textual links available to you (each referred to herein as a “Link” or collectively, as the “Links”). The Links will serve to identify your website as a member of the Affiliate Program and will establish a link from your website or e-mail to HATH’s website. You agree to cooperate fully with us in order to establish and maintain such Links. You further agree that your use of the Links must be in compliance with this Agreement at all times. HATH may modify the Links from time to time in its sole discretion. You will not use graphic or textual images (indicating a Link) or text messages to promote HATH that are not approved in advance by HATH.
EXCEPT AS PERMITTED HEREIN, YOU SHALL NOT AND ARE NOT AUTHORIZED TO (i) USE THE HATH TRADEMARK, NAME OR ANY OF OUR OTHER INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, THE LINKS, AND THE LICENSED MATERIALS (COLLECTIVELY, THE “HATH IP”) (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM OR TERMS CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) WITHOUT HATH’S EXPRESS PRIOR WRITTEN PERMISSION; (ii) USE HATH IP IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS OR GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), KEY WORDS, ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (iii) ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY “INITIAL INTEREST CONFUSION” OVER THE USE OF HATH IP ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. YOUR USE OF HATH IP IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED HEREUNDER SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF HATH’S INTELLECTUAL PROPERTY RIGHTS, AND MAY SUBJECT YOU TO CLAIMS FOR DAMAGES (INCLUDING POTENTIAL TREBLE DAMAGES FOR KNOWING OR WILLFUL INFRINGEMENT), AND THE OBLIGATION TO PAY HATH’S LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH HATH SEEKS TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT OR WITH REGARD TO ANY OF HATH’S INTELLECTUAL PROPERTY RIGHTS.
HATH does not participate in any PPC advertising and will make no payments for PPC advertising.
You are not allowed to post any refunds, credits or discounts on the HATH Products and Services, or other content concerning HATH without HATH’s prior written consent in each instance. Affiliates may only use coupons and discounts that are provided exclusively through the Affiliate Program using banners and links. Each Link connecting users of the Affiliate Site to the pertinent area of the HATH website will in no way alter the look, feel, or functionality of the HATH website. Any violations of the terms surrounding links, coupons, refunds, credits or discounts shall constitute a material breach of this Agreement, and may result in your termination from the Affiliate Program or the withholding of Commission Fees
It is the intent of HATH to treat all of our customers fairly. Accordingly, we require all HATH Affiliates to comply with applicable laws, regulations and guidelines concerning advertising and marketing, including without limitation, the Federal Trade Commission (FTC) Endorsement Guides, which require that material connections between advertisers and endorsers be disclosed. This means that all Affiliate Sites (e.g. directories, review/rating websites, blogs, and other websites) and any email or collateral that provide an endorsement or assessment of HATH’s Products and Services must prominently disclose the fact that you receive compensation for Referred Customers.
For more information and suggestions about how to comply with these guidelines, please visit our page entitled “Affiliate Disclosure Requirements and Examples.” Please note that this page is only intended to provide guidance. It does not purport to provide legal advice and it does not guarantee that you’ll be in compliance with FTC regulations should you follow the suggestions presented. You are advised to seek and obtain your own legal advice on how these rules apply to your website or other promotional activities for which you receive compensation.
HATH reserves the right to withhold Commission Fees and cancel the affiliate relationship with you should we determine, at our sole discretion, that you are not in compliance with the previously mentioned guide or other FTC regulations or guides that we deem relevant.
In addition to the obligations set forth in Section 4 (FTC Endorsement Compliance), Affiliate shall comply with all applicable data protection laws regarding the transmission of data exported to or from the United States or the country in which Affiliate resides, including without limitation, the General Data Protection Regulation 2016/679 of European Parliament and of the Council of 27 April 2016 (the “GDPR”). Affiliate, as a controller under the GDPR, shall also implement appropriate technical measures to ensure a level of security appropriate to the risk, taking into account the nature, scope, context, and purpose of processing any personal data. Affiliate agrees to promptly assist HATH in complying with any data subject rights request under the GDPR that HATH may receive from any individuals referred to HATH by Affiliate. Affiliate further agrees to promptly assist HATH in complying with any duties to cooperate with supervisory authorities under the GDPR.
HATH will process orders placed by Referred Customers who follow the Links from an Affiliate Site to HATH. We reserve the right, in our sole discretion, to reject orders that do not comply with certain requirements that we may establish from time to time. All aspects of order processing and fulfillment, including HATH’s services, cancellation, processing, refunds and payment processing will be our responsibility. We will track the Qualified Purchases generated by your Affiliate Site and will make this information available to you through our website. To permit accurate tracking, reporting, and commission accrual, you must ensure that the Links between your website and our website are properly formatted.
A “Qualified Purchase” does NOT include the following:
HATH reserves the right to withhold payment of initial Commissions Fees to Affiliates who are new to the Affiliate Program, or who have commissions that are potentially fraudulent as determined by HATH in its sole discretion, to determine the legitimacy and cancellation rates of Referred Customers.
HATH reserves the right to suspend the payment of Commission Fees at any time and indefinitely, if it suspects fraud or other improper activity or a potential breach of any of the terms of this Agreement by the Affiliate or a Referred Customer. HATH reserves the right to deduct from Affiliate’s current and future Commission Fees any and all Commission Fees corresponding to any fraudulent, questionable, and cancelled purchases.
HATH reserves the right to immediately cancel or withhold for later review any Commission Fee that fails to meet the criteria of a “Qualified Purchase.” Affiliate is responsible for monitoring the payment, denial, and withholding of Commission Fees; HATH is not obligated to actively notify Affiliates of the status of Commission Fees. If Affiliate has a question about a Commission Fee that has been cancelled or withheld, Affiliate has thirty (30) days from the day the payment would have been due to contact HATH to request that the Commission Fee be paid. Any changes to decisions about cancelled or withheld Commission Fees are strictly made in HATH’s sole discretion.
Commissions for any Referred Customer who is associated with any HATH reseller, referral or other program may not be considered a Qualified Purchase. In other words, you may not receive double commissions or compensation.
In the event that the Referred Customers that are referred to HATH by an Affiliate are determined to have an excessive cancellation rate, as determined by HATH in its sole discretion, HATH reserves the right to withhold or decline pending and future Commission Fees to such Affiliate.
Any attempt by an Affiliate to manipulate, falsify or inflate Referred Customers, Qualified Purchases, or Commission Fees to intentionally defraud HATH or any violation of the terms of this Agreement constitutes immediate grounds for HATH to terminate the Affiliates participation in the Affiliate Program and will result in the forfeiture of any Commission Fees due to the Affiliate.
The commission rate is 20% of sales for referred customers. Sales tax and shipping costs are excluded from referral calculations.
Hath will pay your Commission Fees through ACH, check or payroll processor.
HATH, in its sole discretion, reserves the right to modify the available commission payment methods or payment schedule at any time. Such changes shall take effect when posted.
Disputes: Affiliate has access to HATH’s real-time Affiliate Program statistics and agrees to file any disputes within forty-five (45) days after the end of the month in which the sale or event that is disputed occurred. Disputes filed after forty-five (45) days of the date on which the disputed sale or event occurred will not be accepted by HATH and Affiliate forfeits forever any rights to a potential claim.
It is solely your responsibility to provide HATH with accurate tax and payment information that is necessary to issue a Commission Fee to you. If HATH does not receive the necessary tax or payment information within ninety (90) days of a Qualified Purchase which would otherwise trigger Commission Fees, the applicable commissions shall not accrue, and no Commission Fees will be owed with respect to such Qualified Purchase.
Each Affiliate is required to submit a W8/W9 tax form before any Commission Fees shall accrue. You are responsible for the payment of all taxes related to the commissions you receive under this Agreement. In compliance with U.S. tax laws, HATH will issue a Form 1099 to Affiliates whose earnings meet or exceed the applicable threshold.
Any address change must be made in the Affiliate profile in the affiliate console at least fifteen (15) business days prior to the end of the calendar month in order for Commission Fees for that month to be processed
You are solely responsible for the development, operation, and maintenance of your Affiliate Site and for all materials that appear on your Affiliate Site. Such responsibilities include, but are not limited to, the technical operation of your Affiliate Site and all related equipment; creating and posting product reviews, descriptions, and references on your Affiliate Site and linking those descriptions to our website; the accuracy of materials posted on your Affiliate Site (including, but not limited to, all materials related to HATH Products and Services); ensuring that materials posted on your Affiliate Site do not violate or infringe upon the rights of any third party and are not libelous or otherwise illegal. We disclaim all liability and responsibility for such matters
We have the right in our sole discretion to monitor signups through your Affiliate Site from time to time to determine if you are in compliance with the terms of this Agreement. If you are not in compliance, we may terminate your participation in the Affiliate Program effective immediately.
Referred Customers who buy HATH Products and Services through our affiliate network are deemed to be HATH Customers. HATH’s Terms and Conditions, rules, policies, and operating procedures will apply to such customers. We may change our policies, pricing, and operating procedures at any time. For example, HATH determines the prices to be charged for HATH Products and Services sold through the affiliate network in accordance with our own pricing policies. Prices and availability of HATH Products and Services may vary from time to time, from affiliate to affiliate, and from region to region. Because price changes may affect products that you have listed on your Affiliate Site, you may or may not be able to include price information in your product descriptions. We will use commercially reasonable efforts to present accurate information on our website, but we cannot guarantee the availability or price of any particular HATH Product or Service.
You shall not create, publish, transmit or distribute, under any circumstances, any bulk email messages (also known as “SPAM”) without prior written consent from HATH, to be granted or denied in HATH’s sole discretion, in each instance. Additionally, you may only send emails containing a HATH affiliate link and or a message regarding HATH or HATH ‘s Affiliate Program to people who have previously consented to receiving such communications from you. Your failure to abide by this Section 14, the CAN-SPAM Act of 2003, our Anti-Spam Policy, and all applicable laws relating to email communications, in any manner, will be deemed a material breach of this Agreement by you and will result in the forfeiture by you of any and all rights you may have to any commissions and the termination of your participation in the Affiliate Program. Further, if your account has excessive clicks in a very short period of time as determined by HATH in its sole discretion, the Affiliate relationship may be terminated.
Licenses and Use of HATH Logos and Trademarks.
Subject to the limitations set forth in Section 3 above and otherwise in this Agreement, we grant you a non-exclusive, non-transferable, revocable license to (i) access our website through the Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such Links, to use the HATH trademark and logo and similar identifying material provided by us (collectively, the “Licensed Materials”), for the sole purpose of selling HATH Products and Services on your Affiliate Site and as approved in advance by us. You may not alter, modify, or change the Licensed Materials in any way. You are only entitled to use the Licensed Materials while you are an Affiliate in good standing and in compliance with all of the terms of this Agreement.
You shall not use the Licensed Materials for any purposes other than selling HATH Products and Services, without first submitting a sample to us and obtaining the express prior written consent of HATH in each instance. You shall not use the Licensed Materials in any manner that is disparaging or that otherwise portrays HATH, any hosted member of HATH or any HATH employee or representative in a negative light. We reserve all of our rights in the Licensed Materials and your license to use such material is limited to the manner described herein. We may revoke your license at any time, by giving you written notice. If not previously revoked, this license shall immediately terminate upon the termination of your participation in the Affiliate Program.
You grant to us a non-exclusive license to utilize your name, title, trademarks, and logos (the “Affiliate Trademarks”) in any advertisement or other materials used to promote HATH and the Affiliate Program, provided that HATH’s use of the Affiliate Trademarks is not required and is at its sole discretion. This license shall terminate upon the termination of your participation in the Affiliate Program.
The term of this Agreement will begin upon our acceptance of your Affiliate Program application and will end when terminated by either party (the “Term”). Either party may terminate this Agreement at any time, with or without cause.
You are only eligible to earn Commission Fees on Qualified Purchases occurring during the Term. Commission Fees earned prior to the date of termination will be eligible for commissions only if the orders for the related HATH Products and Services are not cancelled within (30) days and comply with all of the terms of this Agreement. We may withhold your final payment of Commission Fees for a reasonable time to ensure that all Qualified Purchases are valid and payment from Referred Customers are legitimate as determined by HATH in its sole discretion.
Any Affiliate who violates this Agreement, HATH ‘s Terms and Conditions, or any applicable law will immediately forfeit any right to any and all accrued, but not yet received, Commission Fees and will be immediately removed from the Affiliate Program.
HATH reserves the right to remove an Affiliate from the Affiliate Program, and to terminate or suspend this Agreement, at any time for any reason, in HATH ‘s sole discretion.
We may modify this Agreement at any time in our sole discretion; provided that the change shall solely apply to events occurring after the date on which you accept and agree to such modifications unless you otherwise agree herein. Such modifications shall take effect when posted on our website. Modifications may include, but are not limited to, changes in the scope of available Commission Fees, commission amounts or percentages, payment procedures, Commission Fee payment schedules, and Affiliate Program rules. If any modification is unacceptable to you, your only recourse is to terminate this agreement, in which event you shall be entitled to your rights under the unmodified Agreement prior to the date of the applicable modification. Your continued participation in the Affiliate Program following our posting of any modification on our website will constitute binding acceptance of the change.
We make no express or implied warranties or representations with respect to the Affiliate Program or any HATH Products and Services sold through the Affiliate Program (including, without limitation, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). In addition, we make no representation that the operation of our website will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors, including the tracking of information concerning Referred Customers during any period of interruption.
You and HATH 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 Affiliate Site or otherwise, that contradicts anything in this section.
You hereby represent and warrant to us as follows:
WE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE AFFILIATE PROGRAM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL COMMISSIONS PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
You hereby agree to indemnify and hold harmless HATH and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the Affiliate Trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your Affiliate Site, including, without limitation, its development, operation, maintenance and content therein not attributable to us.
Each of the parties hereto agrees that all information including, without limitation, the terms of this Agreement, business and financial information, HATH and vendor lists, and pricing and sales information, shall remain strictly confidential and shall not be utilized for any purpose outside the terms of this Agreement except and solely to the extent that any such information is (a) already lawfully known to or independently developed by the receiving party, (b) disclosed in published materials, (c) generally known to the public, or (d) lawfully obtained from any third party any obligation of confidentiality to the discloser hereunder. Notwithstanding the foregoing, each party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a valid subpoena or order issued by any court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process including, without limitation, the Securities Exchange Act of 1933, as amended, and the rules and regulations promulgated thereunder, and the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
You understand that we may at any time (directly or indirectly) solicit HATH relationships on terms that may differ from those contained in this Agreement. We may also solicit relationships with entities that operate websites that are similar to or compete with your Affiliate Site. You have independently evaluated the desirability of participating in the HATH Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement
The laws of the State of New York will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in New York County, New York and you irrevocably consent to the jurisdiction of such courts.
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against the parties and their respective successors and assigns
Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.
This Agreement may be agreed to in more than one counterpart, each of which together shall form one and the same instrument. The parties agree that execution and manifestation of assent may be achieved in any format convenient to the parties.
The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.
The parties agree that any breach of either of the party’s obligations regarding trademarks, service marks or 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 or 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.