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HIH / AFFILIATE PROGRAM
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This Affiliates Program Agreement (the "Agreement") is a legal agreement between you and High Island Health, LLC and contains the complete terms and conditions that apply to an individual's or entity's participation in the High Island Health Affiliates Program (the "Affiliates Program"). In this document, "you" refers to the Affiliates Program applicant, and "HIH" refers to High Island Health. "Site" refers to an Internet website. By completing an Affiliates Program Application and clicking on the "Submit Registration" button, you agree to be bound by the terms of this Agreement.
1. ENROLLING IN THE PROGRAM. To begin the enrollment process, you will submit a completed Affiliates Program Application via the HIH site. HIH will evaluate your application in good faith and will notify you of your acceptance or rejection. HIH may reject your application if HIH determines, in its sole discretion, that your site is unsuitable for the Affiliates Program for any reason. Unsuitable sites include, but are not limited to, those that: promote sexually explicit materials; promote violence; promote discrimination based on race, sex, religion, nationality, disability, sexual orientation or age; promote illegal activities; or violate intellectual property rights.
2. LINKING TO THE HIGH ISLAND HEALTH SITE. On your site, you may place Site Links to pages on the High Island Health site. For purposes of this Agreement, a "Site Link" is a hypertext link comprised of a URL and an HIH-approved graphic or plain text, available from our site. The URL also incorporates unique Affiliates Program Identifier Information which will be provided to you by HIH, or its agent. Once accepted, you may add or delete Site Links from your site at any time without HIH approval. Each Site Link must connect directly to the High Island Health site. You may not transmit "interstitial advertising" to users as they link from your site to the High Island Health site, or otherwise interrupt such link through the use of any intermediate screen or device, including without limitation the use of any html pop-up window. In addition, you may not frame, or otherwise create a border environment or browser around, the High Island Health site or the contents thereof. You will be solely responsible for properly incorporating the Affiliates Program Identifier Information into your Site Link and testing the Site Link to ensure that it operates properly.
3. ORDER PROCESSING. HIH will process orders placed by customers accessing the High Island Health site via a Site Link in accordance with HIH standard business practices. HIH will be responsible for all aspects of order processing and fulfillment. HIH reserves the right to reject orders that do not comply with any requirements that HIH periodically may establish. Customers who buy products from HIH through the Affiliates Program will be deemed to be customers of HIH. Accordingly, all HIH rules, policies, and operating procedures concerning customer orders, customer service, and prices will apply to the customers who use your Site Links to get to the High Island Health site. HIH may change its policies and operating procedures at any time, with or without notice.
4. COMMISSIONS. During the term of the agreement, HIH will pay you a commission equal to 30% of gross sales for every order that is referred to HIH from your web site via the affiliate key which is passed as part of a "Qualifying Link" to the High Island Health site. A "Qualifying Link" is a link from your site to the High Island Health site using one of the Required URLs or any other URL provided by HIH for use if it is the last link to the High Island Health site that the Customer uses during a Session where a sale of a product or a service to Customer occurs. A "Session" is the period of time beginning from a Customer's initial contact with the High Island Health site via a link from your site and terminating when the Customer exits from the High Island Health site.
You will only earn commissions on activities occurring on the High Island Health site and only if such activity was originated from properly formatted "Qualifying Link." HIH will not be liable to you for any failure by you to use a "Qualifying Link," including to the extent that such failure may result in any reduction of amounts, which may otherwise be paid to you pursuant to this Agreement.
Commission may be earned only on credit card transactions. Purchases paid by gift certificate, check, or any method other than credit card are not eligible for commissions.
All determinations of Qualifying Links and whether a commission is payable will be made by HIH and will be final and binding on both HIH and you. Prices for the products will be set solely by HIH in its sole discretion.
In the event HIH, in its sole discretion, suspects fraud or other unlawful conduct by you or by any third party accessing the High Island Health site through links on your site, HIH shall be entitled to suspend or deny payments in whole or in part to you in HIH's sole discretion.
5. COMMISSION PAYMENT. Commission payments will be calculated and paid quarterly (on the months of January, April, July, and October) and within approximately sixty (60) days following the end of such months. HIH may require you to provide additional information in order for HIH to comply with any applicable tax reporting requirements. You hereby agree to provide such information as it may be reasonably requested by HIH for such purposes. The commission payment shall only be made if the aggregate commission for the month exceeds $25. Commission(s) not exceeding $25 shall carry over to the next month's payment schedule.
HIH, or its agent, will provide you with access to a password-protected site to view reports summarizing your Site Link activity. The form and content of the reports may vary from time to time at our discretion. To permit accurate tracking, reporting, and fee accrual, you must ensure that the Site Links between your site and the High Island Health site are properly formatted. Failure to properly format and use the Site Links may result in a reduction of amounts that would otherwise be paid to you pursuant to the terms hereof or the termination of this Agreement.
6. LIMITED LICENSE. In your Site Links, you agree to use only those graphic images that HIH provides, and further agree to update such images with any new images HIH provides. You may not alter the look, feel, or functionality of the graphics in any way without HIH's prior written permission. HIH grants you a limited, non-exclusive, revocable, non-transferable right to use the High Island Health Affiliates Program graphics and such other images for which HIH grants express permission, solely for the purpose of identifying your site as a High Island Health Affiliates Program participant. HIH reserves all of its rights in the graphics and all other intellectual property rights. HIH may revoke your license at any time by giving you written notice.
7. TRADEMARKS. HIH owns and has federal, state, common law, and foreign rights in many trademarks, service marks, trade names, and symbols. You acknowledge that the HIH Trademarks, which include without limitation the symbols, trademarks, and service marks used by HIH to identify its products and/or services, belong solely to HIH and that members of the Affiliates Program have no rights in such Trademarks except for the purpose of displaying Site Links on the Affiliate's site(s) in accordance with the provisions of this Agreement. Any goodwill arising from the use of HIH Trademarks hereunder will belong to HIH. At no time during or after the term of this Agreement will you challenge or assist others to challenge HIH Trademarks or the registration thereof or attempt to register any trademarks, service marks, trade names, or any other marks confusingly similar to the HIH Trademarks. At HIH's reasonable request, all depictions of HIH Trademarks that you intend to use will be submitted to HIH for approval of design, color, and other details. In the event HIH does not approve of such depiction, you will cease using such depiction immediately upon notice. The provisions of this section will survive expiration or termination of this Agreement for any reason.
8. TERM OF THE AGREEMENT. The term of this Agreement will begin upon your receipt of written notification from HIH of its acceptance of your Application and will end when terminated by either party. Either you or HIH 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 all use of HIH's Trademarks and remove from your site(s) all Site Links and all other materials provided by or on behalf of HIH to you in connection with the Affiliates Program. You are only eligible to earn commissions during the term. HIH may withhold your final payment for a reasonable time to ensure that the correct amount is paid. Notification via e-mail to your address in HIH's records will be deemed to have been delivered and given for all purposes on the delivery date.
9. WARRANTY AND DISCLAIMER. You warrant that you have full power and authority to enter into this Agreement and that by entering into, and performance of, this Agreement you will not violate, conflict with, or result in a default under any other contract or agreement to which you are a party. You warrant that your site(s) will not infringe, violate, or misappropriate any copyright, trade secret, trademark, or other proprietary or intellectual property right of any third party or constitute libel, defamation, invasion of privacy, or the violation of any right of publicity or any other right of any third party. You are solely responsible for the development, operation, maintenance, and content of your site(s). HIH will not be responsible for any of the foregoing. You agree to indemnify and hold HIH, and its directors, officers, affiliates, employees, and agents, harmless from all liability, claims, damages, and expenses (including without limitation attorneys' fees, court costs, and costs of other professionals) relating to or arising from the development, operation, maintenance, or contents of your site(s), and/or from any breach by you of any representation, warranty, or agreement made herein.
THE SITE LINKS AND ALL OTHER DOCUMENTATION AND SERVICES ARE PROVIDED BY High Island Health "AS IS." HIH MAKES NO PROMISES, WARRANTIES, OR REPRESENTATIONS OF ANY KIND, AND HIH SPECIFICALLY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SUBJECT MATTER HEREOF, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. HIH MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF THE High Island Health SITE WILL BE UNINTERRUPTED OR ERROR FREE OR THAT HIH PRODUCTS WILL BE AVAILABLE FOR PURCHASE FROM THE High Island Health SITE. THE PROVISIONS OF THIS SECTION WILL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON.
10. LIMITATION OF LIABILITY. IN NO EVENT WILL HIH BE LIABLE TO YOU FOR LOSS OF PROFITS, LOSS OF BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR FOR ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, INDIRECT, OR INCIDENTAL DAMAGES, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE AFFILIATES PROGRAM, HOWEVER CAUSED, AND WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY. THE LIMITS SET FORTH IN THIS SECTION WILL APPLY EVEN IF High Island Health HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL COMMISSIONS PAID TO YOU UNDER THIS AGREEMENT FOR THE THIHLVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. THE PROVISIONS OF THIS SECTION WILL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT FOR ANY REASON.
11. CONFIDENTIALITY. During the term of this Agreement, you may have access to certain non-public information of HIH, which information a reasonable person would consider confidential or which is marked as "confidential" or "proprietary" ("Confidential Information"). Confidential Information does not include information that is generally known and available, or in the public domain through no fault of yours. You agree (i) not to disclose any Confidential Information to any third parties, (ii) not to use any Confidential Information for any purposes except carrying out your rights and responsibilities under this Agreement, and (iii) to use reasonable care to keep the Confidential Information confidential. These obligations will survive for three years after expiration or termination of this Agreement for any reason.
12. NON-COMPETITION. By joining the affiliate program, you agree not to develop, manufacture, sell, distribute, or in any way promote products that are in direct competition with HIH or are considered knockoff imitations of HIH products. HIH reserves the right to determine who are direct competitors and what are knockoff imitations.
13. INDEPENDENT INVESTIGATION. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL ITS TERMS AND CONDITIONS. YOU UNDERSTAND THAT HIH MAY AT ANY TIME (DIRECTLY OR INDIRECTLY) SOLICIT CUSTOMER REFERRALS ON TERMS THAT MAY DIFFER FROM THOSE CONTAINED IN THIS AGREEMENT OR OPERATE SITES THAT ARE SIMILAR TO OR COMPETE WITH YOUR SITE(S). YOU HAVE INDEPENDENTLY EVALUATED THE DESIRABILITY OF PARTICIPATING IN THE AFFILIATES PROGRAM AND ARE NOT RELYING ON ANY REPRESENTATION, GUARANTEE, OR STATEMENT OTHER THAN AS SET FORTH IN THIS AGREEMENT.
14. GENERAL. You and HIH are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and HIH. You understand that you do not have authority to make or accept any offers or make any representations on behalf of HIH. You may not make any public statement, press release, or other announcement relating to the terms or existence of this Agreement, or your participation in the Affiliates Program, without the prior written consent of HIH. If any provision of this Agreement is found by a proper authority to be unenforceable or invalid such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law. The remaining terms will remain in full force and effect. HIH may modify any of the terms and conditions contained in this Agreement, at any time and in HIH's sole discretion, by posting a change notice or a new agreement on our site. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliates Program following our posting of a change notice or new agreement on our site will constitute binding acceptance of the change. You may not assign or otherwise transfer this Agreement or any of your rights or duties under this Agreement without our prior written consent. This Agreement will inure to the benefit of HIH, its successors, administrators, heirs, and assigns. If either party fails or delays in exercising any right or power does not waive that right or power. A single or partial exercise of any right or power does not preclude any further exercise of that, or any other, right or power. Any notice to, or demand on, any party does not entitle that party to any further notices or demands unless required herein. This Agreement is governed by the laws of the State of Texas, without reference to its conflict of law principles and without regard to the 1980 U.N. Convention on Contracts for the International Sale of Goods.
This Agreement constitutes the complete and exclusive understanding and agreement of HIH and you relating to the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements, and communications (including advertisements), whether oral or written, between the parties.
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