Welcome to Angels' Eyes Online! Thanks for joining our Affiliate program.
This Affiliate Marketing Program Terms & Conditions (“Agreement”) is between individuals who apply for and are accepted into the Affiliate Marketing Program (defined below) (“you” or “Affiliate”) and H&C Animal Health LLC (“Company”, “us”, “we”, or “our”). Company and Affiliate are referred to herein, collectively, as the “Parties” and each, individually, as a “Party.”
Affiliate desires to participate in Company’s marketing program that would authorize Affiliate to place uniquely generated links to Company’s website, located at https://angelseyesonline.com/ (the “Company Website”), onto Affiliate’s specified digital properties in exchange for receiving commissions on eligible transactions that result from such placements in accordance with the terms of this Agreement (such program referred to herein as the “Affiliate Marketing Program”).
By participating in the Affiliate Marketing Program, you agree to use the Affiliate Marketing Program in the manner specified in and are bound by this Agreement, as well as our service provider, UpPromote’s Terms and Conditions. If you do not agree to terms and conditions of this Agreement or UpPromote’s Terms and Conditions, in their entirety you are not authorized to participate in the Affiliate Marketing Program.
1. Term
Company reserves the right, in its sole discretion, to approve or reject you for the Affiliate Marketing Program. You will have no legal recourse against us for the rejection of your Affiliate Program Registration. If Company does not notify you that you are accepted to participate in the Affiliate Program within 30 days from your application, your application is considered to be rejected.
This Agreement shall commence on the date the Affiliate is accepted into the Affiliate Marketing Program (“Effective Date”) and remain in full force and effect for 1 year (the “Initial Term”), following which the Agreement shall automatically renew for successive 1-year terms upon each anniversary of the Effective Date (each such term a “Renewal Term”). The Initial Term and the Renewal Term(s), if any, are collectively referred to herein as the “Term.” Termination of the Term is subject to Section 12 (Termination) of this Agreement.
2. Obligations of the Parties
2.1. Obligations of Company. Company shall exercise commercially reasonable efforts to:
(a) Administer the Affiliate Marketing Program in accordance with this Agreement, including by providing, either directly or through a third-party service provider, a website which contains Reporting (defined below) (“Dashboard”);
(b) Provide Affiliate with (i) Company’s logos, product descriptions, images, artworks, videos, and other branding content (the “Company Branding Materials”) for use solely in accordance with Company’s authorized promotions and related claims and disclosures as set forth in this Agreement or in any documentation provided to you from time to time (collectively, the “Authorized Promotions and Claims”) and (ii) Company’s guidelines relating to the use of its name, logos, trademarks, as set forth in any documentation provided to you from time to time (the “Company Brand Guidelines”);
(c) Monitor the Affiliate Links (defined below) and contact the Affiliate Link provider to repair any technical issues that affect functionality as soon as reasonably practicable; and
(d) Pay all commissions due to Affiliate in accordance with Sections 3 (Payment of Affiliate Commission) and 13.2 (Outstanding Payments) of this Agreement.
2.2. Obligations of Affiliate. Affiliate shall:
(a) Generate its own unique tracking links (the “Affiliate Links”) to place on Affiliate’s websites, applications, email newsletters, and social media account pages (collectively, the “Affiliate Digital Properties”) that have not been expressly prohibited by Company and in accordance with the terms of this Agreement;
(b) Use the Dashboard for reporting on interactions with the Affiliate Links and resulting transactions that are eligible for commissions payable to Affiliate (the “Eligible Transactions”) in accordance with Section 3(Payment of Affiliate Commission) of this Agreement;
(c) At all times, Comply with the Company Brand Materials, Company Branding Guidelines, and this Agreement;
(d) Cooperate with Company to establish and maintain authorized placements of the Affiliate Links and the Company Branding Materials on the Affiliate Digital Properties (the “Affiliate Placements”) in accordance with this Agreement, the Authorized Promotions and Claims and the Company Brand Guidelines;
(e) Upon receiving written notice from Company of any reasonable changes that must be made to the Affiliate Placements to comply with this Agreement, make such changes with 3 days;
(f) Not modify or alter the Affiliate Links in any manner; and
(g) Not use any Unapproved Offers or Fraudulent or Misleading Practices (defined below).
3. Payment of Affiliate Commission
3.1. Eligible Transactions. To qualify as an Eligible Transaction, a purchase must be made during the Term of this Agreement by an individual user who arrives at the Company Website through an Affiliate Placement (“User”) in accordance with the requirements of this Agreement.
3.2. Excluded Transactions. Under no circumstance will any transaction that meets any of the following conditions be considered an Eligible Transaction:
(a) Purchases that are subsequently cancelled, refunded, or returned for any reason;
(b) Purchases made by a User subsequent to that User’s initial purchase;
(c) Purchases made by a User who, at the time of the transaction or within 15 days prior to the transaction, is engaged in discussions with Company’s sales representatives, regardless of whether the contact or payment information provided by such User differs from the information contained in Company’s records;
(d) Purchases that are not directly traceable to the Affiliate Links, as described in Section 3.3 (Cookies) below;
(e) Purchases in exchange for which the User has agreed to provide any form of compensation directly to Affiliate or that result from Affiliate offering, promoting, or implying any discounts, coupons, rebates, kick-backs, or other deals other than those specified in the Authorized Promotions and Claims (collectively, “Unapproved Offers”);
(f) Purchases that Company, in its sole discretion, reasonably suspects to have been made as a result of any fraudulent or misleading methods used to direct traffic through the Affiliate Links or Affiliate Placements, including, but not limited to, the use of any spamming, URL masking, self-referrals, fake redirects, or automated software to encourage or facilitate such purchases (collectively, “Fraudulent or Misleading Practices”);
(g) Purchases for which the payment of an Affiliate Commission would be prohibited by applicable law; and
(h) Purchases resulting from Affiliate’s breach of its obligations, representations, or warranties under this Agreement.
3.3. Cookies. The cookies used by Company to track Users who visit the Company Website will expire after certain number days from a User’s initial visit to the Company Website through an Affiliate Link (the “Cookie Timeframe”). Affiliate acknowledges and agrees that, following the expiration of the Cookie Timeframe or a User’s removal or rejection of a cookie, purchases will not be directly traceable to the Affiliate Links and will therefore not constitute Eligible Transactions under this Agreement.
3.4. Payment and Offset Rights. Company shall pay to Affiliate a certain percentage of the value of each Eligible Transaction which shall be based on the classification of the Affiliate, excluding any applicable taxes that Company may be required by law to withhold, in United States dollars (the “Affiliate Commission”), by check mailed to the address provided by Affiliate via the application form or other payment method agreed upon by the Parties in writing, within 60 days of the end of each quarter. For the avoidance of doubt, quarter one ends on March 31st; quarter two ends on June 30th; quarter three ends on September 30th; and quarter four ends on December 31st. Company, in its sole discretion, will determine the Affiliate classification.
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Affiliate Classification
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Affiliate Commission Percentage
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Groomer
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18%
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Influencer
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7%
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Affiliate acknowledges and agrees that all amounts payable by Company are subject to an offset against any amounts owed by Affiliate to Company. Affiliate further acknowledges and agrees that it shall promptly remit any excess payments made by Company to Affiliate upon receiving Company’s written notice or when Affiliate has knowledge of such excess payment. Notwithstanding the foregoing, Company may, in its sole discretion, change the Affiliate Commission percentage upon 30 days prior written notice to the Affiliate. Subsequent participation in the Affiliate Marketing Program after notice of the Affiliate Commission percentage change will be deemed acceptance of the Affiliate Commission percentage change.
3.5. Taxes. Any taxes arising in connection with Company’s payment of the Affiliate Commission shall be paid by Affiliate in full. Affiliate shall provide Company with complete and accurate information relating to applicable taxes and related forms.
4. Intellectual Property
4.1. Ownership of Rights. “Intellectual Property Rights” means collectively, any registered or unregistered patents, trade secrets, rights to inventions, copyright and related rights, trademarks, trade dress, service marks, know-how, knowledge, trade or business names, domain names, goodwill, software, algorithms, user interfaces, ideas, concepts, techniques, methods, the right to sue for passing off, rights in designs, database rights, or other intellectual property rights recognized under law, including the right to sue in respect thereof, or such rights or similar or equivalent rights or forms of protection existing now or that will exist in any part of the world. “Owned IP” means all the Intellectual Property Rights owned or in control by such Party, and all Intellectual Property Rights thereto. Nothing in this Agreement will serve to transfer either Party’s exclusive ownership of its Owned IP to the other Party.
4.2. License to Affiliate. Company grants to Affiliate, during the Term and within the United States (the “Territory”), a limited, non-exclusive, non-transferable, non-sublicensable, royalty-free license to use, copy, and display the Company Branding Materials solely in connection with Affiliate’s participation in the Affiliate Marketing Program and in accordance with the terms of this Agreement, the Authorized Promotions and Claims, and the Company Brand Guidelines.
4.3. License to Company. Affiliate grants to Company, during the Term and within the Territory, a non-exclusive, non-transferable, royalty-free license to use, copy, and display Affiliate’s name, logo, and trademarks (the “Affiliate Trademarks”) solely in connection with Company’s administration of the Affiliate Marketing Program and in accordance with the terms of this Agreement.
4.4. Assignment of Rights. To the extent that Affiliate has any rights in Company’s Owned IP, including any moral or other rights, which are not capable of assignment under applicable law, Affiliate: (a) agrees to and does hereby grant to Company and its designee(s) an exclusive, irrevocable, perpetual, transferable, royalty-free, fully paid up, worldwide right and license to exercise any and all such rights, and to sublicense any or all of the foregoing rights (including the right to grant further sublicenses); and (b) irrevocably and unconditionally waives all enforcement of and agrees not to assert those rights. At Company’s request, without further consideration, but at Company’s expense, Affiliate shall promptly execute a specific assignment of title to Company or its designee(s) and do anything else reasonably necessary to enable Company or its designee(s) to secure a patent, copyright, trademark, or any other form of protection therefor in the United States and other countries. In the event Company is unable, after reasonable effort, to obtain signature on any such documents, Affiliate hereby irrevocably designates and appoints Company as the agent and attorney-in-fact, to act for and on its behalf to execute and file any such application or other document and do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, or other intellectual property protection related to the Company’s Owned IP with the same legal force and effect as if Affiliate had executed them. Affiliate agrees that this power of attorney is coupled with an interest.
5. Non-Disparagement
Affiliate shall refrain from making any public statements, engaging in any advertising or marketing activities, or displaying any content on the Affiliate Digital Properties that would be likely to disparage Company, portray Company in a negative light, or otherwise injure Company’s reputation, including, without limitation, by using Company’s name or the Company Branding Materials in a misleading manner or in connection with any obscene, indecent, defamatory, or unlawful content. Company in its sole discretion may require Affiliate to take down any Affiliate Placement that Company believes, in its sole discretion, violates this Agreement, including this Section.
6. Advertising and Marketing Laws
6.1. Affiliate Digital Properties. Affiliate shall be solely responsible for ensuring that the Affiliate Digital Properties are and continue to be in compliance with all applicable laws, regulations, orders, and guidelines relating to advertising and marketing activities, including, without limitation, Section 5 of the Federal Trade Commission (“FTC”) Act, the Children’s Online Privacy Protection Act (“COPPA”), the CAN-SPAM Act, and all related FTC regulations, orders, and guidelines, including the COPPA Rule, the CAN-SPAM Rule, and the Guides Concerning Use of Endorsements and Testimonials in Advertising (the “FTC Endorsement Guides”), and any applicable State or international laws, collectively referred to herein as the “Advertising and Marketing Laws.”
6.2. Disclosure of Affiliate Relationship. Subject to Company’s compliance with Section 6.3 (Authorized Promotions and Claims), below, Affiliate shall be solely responsible for ensuring that the Affiliate Placements contain all language necessary to clearly and conspicuously disclose Affiliate’s connection to Company as a paid marketing affiliate in accordance with the FTC Endorsement Guides.
6.3. Authorized Promotions and Claims. Company shall be responsible for ensuring that the Authorized Promotions and Claims, to the extent appropriately used by Affiliate in accordance with its obligations under this Agreement, are, and continue to be, in compliance with all applicable FTC regulations and guidelines relating to advertising and consumer protection.
7. Affiliates Representations and Warranties
Affiliate represents and warrant that:
(a) Affiliate possesses, and shall continue to possess, sufficient Intellectual Property Rights in and to the Affiliate Trademarks as necessary to perform its obligations hereunder and to effectuate the license granted pursuant to Section 4.3 (License to Company);
(b) The Affiliate Trademarks do not and, to the reasonable knowledge and belief of Affiliate, will continue to not infringe or violate any copyright, trademark, trade secret, or other Intellectual Property Rights or proprietary, privacy, or publicity right of a third party when used in accordance with the terms of this Agreement;
(c) Affiliate does, and shall continue to, comply with all applicable laws, regulations, orders, and agency guidelines, including, without limitation, the Advertising and Marketing Laws, throughout its participation in the Affiliate Marketing Program; and
(d) Affiliate’s execution and performance of this Agreement will not conflict with or result in a breach of any other agreement to which it is bound.
In addition, Affiliate acknowledges and agrees Company may, in its sole discretion, prohibit the use of any Affiliate Digital Properties. Affiliate represents and warrants that Affiliate will not use any Affiliate Digital Properties that are prohibited by Company.
8. Disclaimer
EXCEPT AS EXPRESSLY PROVIDED HEREIN, COMPANY PROVIDES THE AFFILIATE MARKETING PROGRAM, COMPANY WEBSITE, AND ALL CONTENT, INFORMATION, AND SERVICES AVAILABLE THEREIN “AS IS” AND MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING SUCH PROGRAM, WEBSITE, CONTENT, INFORMATION, OR SERVICES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY MAKES NO REPRESENTATION THAT THE OPERATION OF THE COMPANY WEBSITE WILL BE ACCURATE, UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, AND COMPANY WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INACCURACIES, INTERRUPTIONS, DOWNTIME, ERRORS, VIRUSES, MALICIOUS SOFTWARE, OR ANY DELETION, DESTRUCTION, DAMAGE, OR LOSS OF DATA RELATED TO THE OPERATION OF THE COMPANY WEBSITE.
9. Indemnification
Affiliate shall indemnify, hold harmless, and defend Company and its officers, directors, shareholders, employees, agents, successors, and permitted assigns from and against any third-party claims, suits, proceedings, demands, actions, fines, penalties, judgments, losses, damages, injuries, costs, and expenses (including reasonable attorneys’ fees and costs) (“Liabilities”) to the extent arising out of, related to, or resulting from: (a) Affiliate’s breach of its representations, warranties, and obligations under this Agreement; (b) an alleged violation of a third party’s Intellectual Property Rights by Company’s use of the Affiliate Trademarks in accordance with the terms of this Agreement; or (c) the gross negligence or willful misconduct of Affiliate or its officers, directors, employees, agents, or other representatives.
10. Limitation of Liability
AFFILIATE ACKNOWLEDGES AND AGREES THAT (A) COMPANY’S LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS EARNED BY AFFILIATE PURSUANT TO THIS AGREEMENT WITHIN THE LAST 1 YEAR PERIOD PRECEDING THE INCIDENT GIVING RISE TO A CLAIM, AND (B) CLAIMS FOR DAMAGES MUST BE MADE BY AFFILIATE WITHIN 1 YEAR OF THE INCIDENT TO WHICH THEY RELATE OR BE FOREVER BARRED. EACH PARTY SHALL USE REASONABLE EFFORTS TO MITIGATE ANY LOSSES ARISING UNDER THIS AGREEMENT.
11. Privacy
11.1. Personal Data. To the extent, Affiliate processes any information that identifies or is capable of identifying an individual or is otherwise defined as “personal information” or “personal data” by applicable privacy and data security laws, including, but not limited to, an individual’s name, address, phone number, e-mail address, initials, or payment information (“Personal Data”) in connection with its participation in the Affiliate Marketing Program or otherwise transfers Personal Data to Company or the service providers that assist Company with the providing the Affiliate Marketing Program, Affiliate represents and warrants that Affiliate will: (a) comply with applicable privacy and data security laws; (b) provide proper disclosure to Users about the nature of the process; and (c) prior to transferring such Personal Data, receive the necessary consents from Users for the purposes set forth in this Agreement.
12. Termination
12.1. Termination Upon Expiration. The expiration of the Term of this Agreement pursuant to Section 1 (Term) shall result in the automatic termination of this Agreement.
12.2. Termination for Convenience. Either Party may terminate this Agreement at any time for convenience, with or without cause, upon providing prior written notice to the other Party.
12.3. Termination for Cause. Either Party may terminate this Agreement upon providing written notice to the other Party if (a) the other Party breaches any of its obligations, representations, or warranties under this Agreement and such breach has not been cured within 30 days of receiving written notice specifying the nature of the breach, (b) the other Party becomes insolvent, or (c) without a successor, the other Party dissolves, liquidates, or ceases to conduct its business operations in the ordinary course.
12.4. Other Termination by Company. Company may terminate this Agreement immediately upon providing written notice to Affiliate if Company determines, in its sole discretion, that Affiliate has (a) breached Section 5 (non-disparagement) of this Agreement, (b) made any Unapproved Offers, or (c) engaged in any Fraudulent or Misleading Practices.
13. Effects of Termination
13.1. Licenses. Upon the termination of this Agreement for whatever reason, all licenses granted hereunder shall terminate, and the Parties shall cease use of the Intellectual Property Rights licensed to them by the other Party pursuant to this Agreement. Affiliate shall remove all Affiliate Placements and any other references to the Affiliate Marketing Program from the Affiliate Digital Properties, with the exception of any Affiliate Placements that Affiliate had promoted through its social media pages or email newsletters during the Term.
13.2. Outstanding Payments. Upon automatic termination pursuant to Section 12.1 (Termination Upon Expiration), termination by either Party pursuant to Section 12.2 (Termination for Convenience), or termination by Affiliate pursuant to Section 12.3 (Termination for Cause), Company shall be required to fulfill its obligation to pay any Affiliate Commissions due to Affiliate for Eligible Transactions that occurred prior to the date of termination. Upon termination by Company pursuant Section 12.3 (Termination for Cause) or 12.4 (Other Termination by Company), Company’s obligation to pay any Affiliate Commissions shall expire upon the date of such termination.
13.3. Survival. Sections 3 (Payment of Affiliate Commission), 4.1 (Ownership of Rights), 7 (Affiliates Representations and Warranties), 9 (Indemnification), 10 (Limitation of Liability), 11 (Privacy), 13 (Effects of Termination), and 15 (General Terms) shall survive the termination of this Agreement, along with any other provisions which, by their nature, are intended to survive termination.
14. Governing Law; Jury Waiver; Class Action Waiver
AFFILIATE AND COMPANY EACH UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL. THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY. FURTHER, WITH RESPECT TO ANY CLAIM THAT PROCEEDS IN COURT, AFFILIATE AND COMPANY AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING.
This Agreement shall be governed by and construed in accordance with the laws of Colorado without regard to its conflicts of law principles.
15. General Terms
15.1. Relationship to the Parties. The Parties acknowledge and agree that Affiliate and Company are, and shall remain at all times during this Agreement, independent contractors in relation to each other and that neither Party, its employees, or other representatives, are authorized to make any representations or any commitment on the other Party’s behalf unless previously authorized by such Party in writing. Each Party’s obligations to the other under this Agreement are exclusively contractual in nature. Neither this Agreement nor Affiliate’s participation in the Affiliate Marketing Program shall, or be deemed to, create a partnership, joint venture, agency, fiduciary, or employment relationship or any other legal relationship between the Parties.
15.2. Assignment. Neither Party may assign this Agreement or delegate any of its rights or obligations hereunder without the express prior written consent of the other Party. In addition, neither Party may assign its rights and obligations under this Agreement to a third party who has acquired all or substantially all of the business or assets of such Party related to the performance of this Agreement through a sale, merger, consolidation, reorganization, or similar transaction without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. Any attempted assignment in violation of this Section 15.2(Assignment) shall be void. Except as set forth above, this Agreement shall inure to the benefit of and be binding upon the Parties, their successors, and their permitted assigns.
15.3. Force Majeure. Neither Party shall incur any liability to the other Party resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or forces beyond the reasonable control and without the negligence of such Party (including, without limitation, any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, cyberattack, malicious act of third parties, shortage of materials or supplies, failure of transportation or communications facilities, or failure of suppliers of goods or services).
15.4. Notice. Except as otherwise provided herein, all notices or other communications to be given or that may be given by either Party to the other will be deemed to have been duly given (a) when made in writing and delivered in person or by e-mail correspondence, (b) 1 business day after being sent by recognized overnight courier, or (c) 5 days after deposit in the United States mail, certified, postage prepaid, return receipt requested, and addressed as follows:
FOR AFFILIATE: to the address provided in the Affiliate Marketing Program application.
FOR COMPANY: H&C Animal Health LLC
18403 Longs Way
Suite #102
Parker, CO 80134
The address to which notices or communications may be given to either Party may be changed by written notice given by one Party to the other pursuant to this Section.
15.5. Waivers and Amendments. Failure on the part Company to commence any action or discharge any rights granted hereunder, regardless of the length of time, shall not be deemed to be a waiver by of any of its rights hereunder. A waiver by either Party of any breach of an obligation, representation, or warranty by the other Party shall not be deemed a waiver of any separate or subsequent breach. No provision of this Agreement shall be deemed waived, amended, or modified by either Party unless such waiver, amendment, or modification is in writing and signed by authorized representatives of both Parties.
15.6. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to, or shall, confer upon any third-party person or entity any right, benefit, or remedy.
15.7. Headings. The article, section, and paragraph headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement in any way.
15.8. Severability. If any provision, or any portion of any provision, contained in this Agreement is determined to be invalid under any statute or rule of law, then it shall, to that extent alone, be deemed omitted, and the remainder of this Agreement shall remain in full force and effect.
15.9. Entire Agreement. This Agreement, together with any additional documentation provided to you constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements, understandings, proposals, and communications, oral or written, regarding such subject matter.
