AFFILIATE NETWORK OPERATING AGREEMENT
Hanesbrands Direct, LLC (hereinafter “Hanesbrands”) and you, the affiliate (hereinafter “you” or “your” or "Affiliate"), are parties to this Affiliate Network Operating Agreement ("Agreement").
This Agreement contains the complete terms and conditions that apply to your participation in the Hanesbrands Affiliate Network (as hereinafter defined), which is administered by The LinkShare Network™, and the establishment of Hanesbrands Links from your web site to the Hanesbrands Site.
"Affiliate" shall be further defined to mean any business, individual or entity whose application to participate in the Hanesbrands Affiliate Network has been accepted, and that displays and/or provides Hanesbrands Links from its site to the Hanesbrands Site in exchange for receiving remuneration from Hanesbrands for sales by Hanesbrands resulting from such linkage in accordance with this Agreement.
"Affiliate Site" means each Affiliate's web site which, pursuant to this Agreement with Hanesbrands, provides Hanesbrands Links to the Hanesbrands Site.
"Affiliate Trademarks" means the then-current trademarks service marks and logos that Affiliate uses in connection with its business, products and services.
"Customer" means a visitor to the Hanesbrands Site that purchases a product on the Hanesbrands Site.
"Eligible Purchase" has the meaning provided in section 4 below.
"Hanesbrands" means Hanesbrands Direct, LLC.
"Hanesbrands Affiliate Network" means the Affiliate Sites of all Hanesbrands accepted Affiliates, collectively and the Hanesbrands Site as identified below.
"Hanesbrands Link" means a graphical or textual link image that, when clicked or activated on Affiliate’s site, points the user’s web browsing software to the Universal Record Locator or “URL” for one page of the Hanesbrands Site. The files containing these linked images will be provided to Affiliate by Hanesbrands.
"Hanesbrands Marks" the then-current trademarks service marks and logos that Hanesbrands uses in connection with its business, products and services.
"Hanesbrands Site" means Hanesbrands' web site, www.justmysize.com.
"Licensed Materials" means any and all materials actively licensed to Affiliate by Hanesbrands.
"LinkShare" means the third party beneficiary LinkShare Corporation under this Agreement.
"The LinkShare Network™" means the third party network administered by LinkShare that tracks, calculates and administers the Hanesbrands Affiliate Network on behalf of Hanesbrands.
"Qualifying Link" is a link from the Affiliate Site to the Hanesbrands Site using one of the Hanesbrands Links for use in The LinkShare Network if it is the last link to the Hanesbrands Site that the Customer uses during a Session where a sale of a product occurs.
2. Enrollment in the Hanesbrands Affiliate Network
3. Hanesbrands Links
A. Once your web site has been accepted into the Hanesbrands Affiliate Network and becomes an Affiliate Site, Hanesbrands will make available to you a variety of Hanesbrands Links, which, subject to the terms and conditions hereof, you may display on your Affiliate Site. The Hanesbrands Links will identify your Affiliate Site as a member of the Hanesbrands Affiliate Network and will establish a link from your Affiliate Site to the Hanesbrands Site. You may display on your Affiliate Site any number or combination of Hanesbrands Links.
B. You agree to:
D. You will in no way alter the look, feel or functionality of a Hanesbrands Link, nor will you alter the URL to which it points.
E. In addition, Hanesbrands encourages (but does not require) you to include a Hanesbrands Link to the home page of the Hanesbrands Site.
A. You will receive commission fees in amounts established by Hanesbrands in its sole discretion (hereinafter "Commission(s)") and located on the "Welcome to the Affiliate Program Page" on the Hanesbrands Site only with respect to "Eligible Purchases", defined as those Hanesbrands products that are shipped by Hanesbrands and paid for by the Customer, and which are either:
You acknowledge that Hanesbrands, in its sole discretion, may reject any order that it receives via your Affiliate Site without resulting liability or obligation to you. Eligible Purchases must occur during the term of this Agreement (i.e., before you give or receive notice of termination), and Commissions earned before the date of termination will remain payable only if the applicable orders are not canceled or returned. Commissions will be based on the aggregate amount actually paid to Hanesbrands for Eligible Purchases, excluding amounts collected by Hanesbrands for sales and other taxes, duties, gift-wrapping, shipping, handling, and similar charges and less amounts due to credit card fraud and bad debt, rebates and credits for returned products ("Net Sales").
B. Within thirty (30) days after the end of each calendar month, Hanesbrands will send you (i) a Commission check for applicable Commissions earned by you during such month (less any taxes required to be withheld under applicable law), and (ii) a statement of activity, provided, however, that Hanesbrands will not send you a Commission check unless you have accumulated at least $25 in Commissions. Notwithstanding the foregoing, if this Agreement terminates before you have accumulated at least $25 in Commissions, Hanesbrands will send you a check for the total Commissions accumulated by you after such termination, in accordance with the procedures set forth in Section 8(B)(ii).
C. You shall be responsible for any taxes required to be paid with respect to Commissions Hanesbrands pays to you.
5. Hanesbrands' Obligations
A. You shall not be a party to any transaction between Hanesbrands and a Customer. All Customers shall be subject to Hanesbrands’ standard applicable rules, terms, policies and procedures, as such policies and procedures may change from time to time. Hanesbrands will be solely responsible for all customer service related to any order placed by a Customer via your Affiliate Site.
B. Hanesbrands will give you a password that will allow you to access a web site with a record of Eligible Purchases made via your Affiliate Site. Notwithstanding the foregoing, Hanesbrands may, at any time, change the method by which it informs you of sales activities generated by your Affiliate Site. To permit accurate tracking, reporting and Commissions, you must ensure that your Qualifying Links are properly formatted. Hanesbrands will not be responsible for improperly formatted links.
C. Hanesbrands will be responsible for order processing and fulfillment of orders placed by Customers who follow your Qualifying Link(s) to the Hanesbrands Site. Hanesbrands reserves the right to reject orders for any reason.
6. Licenses and Use of the Hanesbrands Logos and Trademarks
A. Hanesbrands grants to you a non-exclusive, non-transferable, revocable, limited right and license during the term of this Agreement to: (i) display the Hanesbrands Links (or any other text or graphics that Hanesbrands explicitly grants you permission to display) (the "Licensed Materials") on your Affiliate Site, solely for the purposes of this Agreement. You may not alter, modify or change the Licensed Materials. You are entitled to display the Licensed Materials only during the term of this Agreement.
B. You shall not use any Licensed Materials (i) in any manner that disparages Hanesbrands or otherwise portrays Hanesbrands in a negative light, or (ii) for purposes other than advertising the Hanesbrands products on your Affiliate Site without obtaining the prior written consent of your Hanesbrands account executive. You agree to follow all policies regarding Licensed Materials provided to you by Hanesbrands from time to time. Hanesbrands reserves all of its rights in the Licensed Materials and in all other Hanesbrands copyrights, trademarks, tradenames, and other intellectual property.
C. You grant to Hanesbrands a non-exclusive license during the term of this Agreement to utilize your name and the names, titles, and logos used on your Affiliate Site, as the foregoing may be changed or altered by you from time to time (the "Affiliate Trademarks"), solely for the purposes of advertising, marketing, promoting, and publicizing in any manner Hanesbrands’ rights hereunder; provided, however, that Hanesbrands shall not be required to advertise, market, promote, or publicize the Affiliate Trademarks.
D. These licenses shall terminate upon expiration or earlier termination of this Agreement.
7. Obligations Regarding Your Affiliate Site
A. You shall be solely responsible for the creation and operation of your Affiliate Site and for all materials that appear on your Affiliate Site. Such responsibilities include, but are not limited to (i) the operation, design and coding of your Affiliate Site, (ii) the operation and maintenance of your computer equipment, (iii) uploading and displaying the Hanesbrands Links, (iv) the accuracy and propriety of materials posted on your Affiliate Site, (v) the legality of your use of information about your users that you collect via your Affiliate Site, and (vi) ensuring that materials posted on your Affiliate Site do not violate or infringe upon the rights of any third party and are not libelous, obscene, illegal or otherwise objectionable to Hanesbrands.
B. You shall not:
C. Except to the extent that you have received permission from Hanesbrands in writing, your Affiliate Site shall not contain any content from the Hanesbrands Site or any materials which are proprietary to Hanesbrands, other than the Licensed Materials. You further agree that:
(i) you will not use (except as provided in this Agreement) and have not registered and will not register any Hanesbrands or its affiliates' name, domain name or trademark (or confusingly similar name, domain name or trademark) including but not limited to the following: "Hanesbrands", "One Hanes Place", "Just My Size", "L'eggs", "Hanes", "Playtex", "Bali", "Champion", "ChampionUSA", "JMS", "Barely There", "Wonderbra" or any variation thereof (collectively, the "Hanesbrands Marks");
(ii) you will not purchase or otherwise contract with a third party to exploit any of the Hanesbrands Marks for the purpose of causing your Affiliate Site to appear as a search result in any search engine or for any other reason. Examples of these prohibited keywords include, but are not limited to: "Hanes.com", "Hanesbrands", "Hanes", "Champion t-shirts," "justmysize.com", "Playtex", "Hanesbrands.com", "Hanes discounts", and "Hanes coupons"
(iii) you will not use or incorporate any Hanesbrands Marks or misspellings or variations thereof in the domain name(s) of your site(s) or any meta tags of web pages comprising your site(s), in hidden text or source code, or searchable keywords, or otherwise cause your Affiliate Site to appear as a search result in any search engine using Hanesbrands Marks or misspellings or variations thereof;
(iv) you will not redirect the URL of your Affiliate Site to the Hanesbrands Site or to any other web site; and
(v) if your Affiliate Site donates any portion of its Commissions or other referral fees to any school, foundation or charitable organization, you will not state or imply that Hanesbrands in any way endorses such activities or is responsible in any way for the inclusion and donation of funds associated with your Affiliate Site.
D. You will make available to traffic to your Affiliate Site only those discount codes that have been authorized for your use by the express written consent of Hanesbrands.
E. Hanesbrands has the right in its sole discretion to monitor your Affiliate Site to determine if you are in compliance with the terms of this Agreement. If Hanesbrands determines in its sole discretion that you are not in compliance, Hanesbrands may terminate this Agreement immediately.
8. Agreement Term
A. The term of this Agreement will begin upon Hanesbrands’ acceptance of your application to the Hanesbrands Affiliate Network and will end immediately upon termination by either party. Either party may terminate this Agreement at any time, in its sole discretion and for any or no reason, by providing the other party with written notice of termination.
B. Upon termination by either party:
(i) You shall immediately remove from your Affiliate Site and cease your use of all Hanesbrands Links, Licensed Materials and Hanesbrands Marks.
(ii) The terms of Sections 9, 10, 11, 12, 13 and 14 shall survive the expiration or termination of this Agreement for any reason.
THE HANESBRANDS SITE, THE HANESBRANDS AFFILIATE NETWORK, THE HANESBRANDS LINKS AND THE LICENSED MATERIALS ARE PROVIDED "AS IS WHERE IS" WITHOUT ANY WARRANTY OF ANY KIND. HANESBRANDS HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE HANESBRANDS SITE, THE HANESBRANDS LINKS, THE LICENSED MATERIALS, THE HANESBRANDS AFFILIATE NETWORK OR ANY HANESBRANDS PRODUCTS SOLD THROUGH THE HANESBRANDS AFFILIATE NETWORK, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR TRADE USAGE. IN ADDITION, (I) HANESBRANDS MAKES NO REPRESENTATION THAT THE OPERATION OF THE HANESBRANDS SITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND (II) HANESBRANDS DISCLAIMS ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO THE OPERATION AND CONTENT OF YOUR AFFILIATE SITE.
10. Representations and Warranties
You represent and warrant to Hanesbrands as follows:
A. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
B. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation (if applicable), or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
C. You are the sole and exclusive owner of the Affiliate Trademarks and have the right and power to grant to Hanesbrands the license to use the Affiliate Trademarks in the manner contemplated herein, and such grant does not and will not (i) breach, conflict with, or constitute a default under any agreement or other instrument applicable to you or binding upon your assets or properties, or (ii) infringe upon any trademark, trade name, service mark, copyright, or other proprietary right of any other person or entity.
D. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
E. There is no pending or, to the best of your knowledge, threatened, claim, action, or proceeding against you, or any of your affiliated persons, entities or companies, with respect to the execution, delivery, or consummation of this Agreement, or with respect to the Affiliate Trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
G. Content and material on your Affiliate Site will not (i) infringe any copyright, patent, trademark, trade secret or other intellectual property right of any third party; (ii) violate any publicity or privacy right of any third party; (iii) violate any applicable law, statute, ordinance, rule or regulation; (iv) be defamatory or libelous; (v) be lewd, pornographic or obscene; (vi) promote violence or contain hate speech; (vii) promote discrimination based on race, age, sex, religion, nationality, sexual orientation or disability; or (viii) contain viruses, trojan horses, worms, time bombs, cancelbots or other harmful or deleterious programming routines.
H. If you are a natural person (as opposed to a corporation or other entity), you are at least 18 years of age.
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each party (the “Receiving Party”) agrees that all information including, without limitation, the terms of this Agreement, business and financial information, customer and vendor lists, and pricing and sales information, concerning the other party (the “Receiving Party”) or its affiliates provided by or on behalf of any of them shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by the Receiving Party for its own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than the Disclosing Party or its affiliates. Notwithstanding the foregoing, the Receiving Party is hereby authorized to deliver a copy of any such information (a) to any person pursuant to a subpoena issued by any court or administrative agency, (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.
12. Limitation of Liability
HANESBRANDS WILL NOT BE LIABLE FOR INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE, PROFITS, OR DATA, ARISING IN CONNECTION WITH THIS AGREEMENT OR THE HANESBRANDS AFFILIATE NETWORK, EVEN IF HANESBRANDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. HANESBRANDS’ TOTAL LIABILITY TO YOU FOR DAMAGES SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE TOTAL COMMISSIONS PAID TO YOU UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
You shall indemnify and hold harmless Hanesbrands, its subsidiaries, affiliates, and their respective 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 and expenses) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereto) arise out of or are based on: (a) any claim that Hanesbrands’ or its affiliates’ use of the Affiliate Trademarks infringes any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary, publicity or privacy right of any third party; (b) any breach of your warranties, representations or covenants contained herein; (c) any claim related to your Affiliate Site, including, without limitation, the development, operation or maintenance of your Affiliate Site or content contained therein; (d) any third party claim against you; or (e) any claim that you have breached a duty to, or otherwise wronged or harmed, any third party.
A. This Agreement will be governed by the laws of the United States and the State of North Carolina, without reference to its rules regarding choice of law. Any dispute relating to this Agreement which is not settled between the parties must be determined in an action brought in the federal or state courts located in Winston-Salem, North Carolina, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without Hanesbrands’ prior written consent. Subject to that restriction, this Agreement will be binding on and inure to the benefit of the parties and their respective permitted successors and assigns. Hanesbrands’ waiver of your breach of this Agreement shall not be deemed a waiver of any other or subsequent breach.
B. Nothing in this Agreement shall be construed to constitute either party as a partner, employee or agent of the other, and no employee or agent of either party shall be deemed to be the employee or agent of the other. Neither party shall have the authority to make any agreement or commitment, nor incur any liability on behalf of the other, nor be liable for any acts or omissions of the other, except as specifically provided herein.
C. The terms of this Agreement are in addition to, and not in place of, all prohibitions and restrictions that you are bound to under the LinkShare Affiliate Membership Agreement, as amended.
D. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. Hanesbrands may modify any of the terms and conditions (including without limitation terms and conditions related to Commission rates and usage of the Licensed Materials or Hanesbrands Marks) contained in this Agreement at any time in its sole discretion upon written notice to you. You will be notified of any such changes by e-mail to the last e-mail address provided to Hanesbrands and a change notice will be posted on the Hanesbrands Site. IF YOU DO NOT AGREE TO THE TERMS OF SUCH MODIFICATION, YOU SHALL PROVIDE NOTICE OF TERMINATION TO HANESBRANDS. OTHERWISE, YOUR CONTINUED PARTICIPATION IN THE HANESBRANDS AFFILIATE NETWORK FOLLOWING ANY SUCH MODIFICATION WILL CONSTITUTE BINDING ACCEPTANCE OF THE MODIFICATION. YOU MAY NOT MODIFY THIS AGREEMENT.
BY CLICKING THE "I ACCEPT" BUTTON BELOW, YOU ARE ENTERING INTO A BINDING LEGAL AGREEMENT. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND ACCEPT THE TERMS AND CONDITIONS OF SAME