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The Hyatt Fruit Company Affiliate Program Terms and Conditions
This Agreement, made and entered by and between Hyatt Fruit Company, ("HyattFruitCo.com" or "we"), with its principal place of business in Vero Beach, FL, and you, the affiliate ("you" or "Affiliate"), contains the complete terms and conditions that apply to your participation in the Hyatt Fruit Company Affiliate Program (the "Affiliate Program" or "Program").
Enrollment in the Program
Applicant will submit a complete Affiliate Program application from our site. We may reject your application (at our sole discretion) if we feel your site is unsuitable or inconsistent with the mission of Hyatt Fruit Company. If your site is accepted, Hyatt Fruit Company may terminate this Agreement anytime thereafter if your site is determined (at our sole discretion) to be unsuitable for the Program, even if your site has not changed since the time that your Affiliate Program application was accepted.
Promotion of Our Affiliate Program
Upon your acceptance as an Affiliate Site, we will make available to you (via Hyatt Fruit Company's affiliate pages) a variety of graphic and textual links (the "Links"), which, subject to the terms and conditions hereof, you may display as often and in as many areas of your approved site as you desire. The Links will serve to channel potential buyers to our site.
Hyatt Fruit Company Agrees to:
- Pay Affiliate 5% commission for each sale made to a buyer reaching the Hyatt Fruit Company site via your site. Sales must be made within the sales ?window? of 45 days and recognized by the affiliate software.
- Pay Affiliate on a monthly basis when your account has reached a minimum of $20.00. Accounts with a balance of less than $20.00 will roll over to the next month.
Affiliate Agrees to:
- Place HyattFruitCo.com Links on your site.
- Observe Hyatt Fruit Company's exclusive rights as to the names of its properties, including but not limited to Hyatt Fruit Company, within all pay-for-placement and other search engines. Additionally, Affiliate may not claim to be Hyatt Fruit Company in any pay-for-placement or other search engines. If Affiliate violates this policy, Affiliate will be terminated and Hyatt Fruit Company reserves the right to charge back, and/or disallow any and all commissions.
- Remove all links regarding Hyatt Fruit Company sweepstakes and other promotions on the date such promotions end, and agree to forfeit any commissions earned after the end date of the promotions if you continue to post such links.
- Have sole responsibility for the development, operation, and maintenance of your site and for all the materials that appear on your site.
- Ensure that all materials posted on your site are not illegal and do not infringe on the rights of any person or entity of any kind. We disclaim all liability for all materials on your site.
- Indemnify, defend, and hold us harmless from all claims, damages, and expenses relating to the development, operation, and contents of your site.
- Make sure that your site does not copy or resemble the look and feel of Hyatt Fruit Company or create the impression that your site is our site or a part of our site.
- If any immoral or unethical links are added to your site pointing to Hyatt Fruit Company, Hyatt Fruit Company reserves the right to pursue all legal courses of action against you to the fullest extent possible under the law and you will be responsible for returning all commissions to Hyatt Fruit Company.
Cookies
Commissions are tracked through the use of cookies. In some cases it will not be possible to track traffic from the Affiliate?s site to Hyatt Fruit Company, because the visitor is using cookie-blocking software. Hyatt Fruit Company is only responsible for paying commissions on sales that can be tracked back to the Affiliate using the technology in use by Hyatt Fruit Company.
Furthermore, Hyatt Fruit Company uses a ?last Affiliate owns the visitor system,? under which a particular Internet user is assigned to the last affiliate site he visited prior to entering Hyatt Fruit Company and making a purchase. For instance, the user visits Affiliate A; then enters Hyatt Fruit Company but does not make a purchase; then later visits Affiliate B; finally enters Hyatt Fruit Company and makes a purchase. In this case the buyer is assigned to Affiliate B, and the commission is paid to Affiliate B.
Confidentiality
Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties hereto 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 us or you, respectively, or any of our 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 such 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 such party hereto or its affiliates. This survives the term of the agreement.
Limitation of Liability
We will not be liable for indirect, special, or consequential damages, or any loss of revenue, profits, or data, arising in connection with this Agreement or the Affiliate Network, 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.
Limited License
We grant you a nonexclusive, nontransferable, revocable right to link to our site through the Links solely in accordance with the terms of this Agreement, for the sole purpose of linking your site to our site, solely for the purpose of identifying your site as a participant in the Program and assisting in selling Hyatt Fruit Company merchandise. You may not alter, modify, or change the Links in any way. You are only entitled to use the Links to the extent that you are a member in good standing of the Hyatt Fruit Company Affiliate Program. We may revoke your license anytime by giving you written notice.
Disclaimers
We make no express or implied warranties or representations with respect to the Hyatt Fruit Company Web site or the Hyatt Fruit Company 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 site will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors.
Termination
The terms of this Agreement will begin upon our acceptance of your application. This Agreement shall commence on the date of approval of your Affiliate Program application and shall continue thereafter in full force and effect until terminated at any time by either party by giving the other party written notice of termination. Upon termination of this Agreement for any reason, you will immediately cease use of, and remove from your site, all Links to our site, and all Hyatt Fruit Company.com trademarks, trade dress, and logos, and all other materials provided by or on behalf of us to you pursuant hereto or in connection with the Program.
Modifications
We may modify any of the terms and conditions of this Agreement at any time. You will be notified by e-mail, using the e-mail address currently listed in your Affiliate Profile, and a change notice will be posted on our site. If the modifications are unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in this Affiliate Program after a change notice has been posted will constitute binding acceptance of the change.
Independent Contractors
You and Hyatt Fruit Company 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.
Representations and Warranties
You hereby represent and warrant to us as follows:
- This Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
- The development, operation, and contents of your site do not infringe upon the copyright, trademark, or any other right of any person or entity.
Independent Investigation
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You understand that we may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate Web sites that are similar to or compete with your Web site. You have independently evaluated the desirability of participating in the Hyatt Fruit Company Affiliate Program and are not relying on any representation, guarantee, or statement other than as set forth in this Agreement.
Fraud
If you commit fraud or falsify information in connection with the sale of Hyatt Fruit Company merchandise through the Links on your site, this Agreement will be terminated immediately. In addition, you will be liable to Hyatt Fruit Company for any and all damages that Hyatt Fruit Company suffers as a result of such actions. You will also be responsible for returning to Hyatt Fruit Company all commissions received for fraudulent/falsified sales, and we will not hesitate to pursue all legal courses of action against you to the fullest extent possible under the law.
Anti-Predatory Advertising
Affiliates will be removed from the Hyatt Fruit Company Affiliate Program and forfeit any pending commissions if they are utilizing or distributing software downloads that enable diversions of commission from other affiliates in our program.
Such systems include those commonly known as "ParasiteWare" or that carry out functions commonly known as "Parasitic Marketing." ParasiteWare is software (including, but not restricted to, browser helpers, browser plug-ins, toolbars and pop ups/sliders) that knowingly or unknowingly undermines or removes another affiliate's ability to compete by changing, intercepting or redirecting an affiliate link. ParasiteWare may be installed knowingly or unknowingly by the end user, altering their normal web browser functions and/or installing a third party application that works through the user's altered browser.
Affiliate also agrees not to use any kind of technique that intercepts natural searches to redirect traffic through an installed software, thereby causing commission-tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the natural search. (Natural search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot, LookSmart and similar search or directory engines)
Affiliate agrees not to use any technique or marketing program that might reasonably be considered "predatory" or manipulative. Hyatt Fruit Company reserves the right to determine whether a technique or program is unreasonable. In the event of a breach of this Agreement by Affiliate and/or a third party or licensee, Hyatt Fruit Company shall immediately terminate this agreement, and, in addition to all other remedies available to it, Hyatt Fruit Company shall have the right to refuse to make payments to Affiliate as a result of Affiliate's efforts promoting Hyatt Fruit Company.
Affiliate agrees to indemnify, defend and hold Hyatt Fruit Company harmless from any cost, expense or liability arising out of any breach or alleged breach of your obligations under this Anti-Predatory Policy.
E-mail Marketing
Affiliate agrees to comply with the requirements of the CAN-SPAM Act of 2003 (the ?Act?) in its distribution of e-mail that contains messaging regarding Hyatt Fruit Company. More specifically, e-mail that meets this criteria:
- May only be sent to recipients who have expressly agreed directly with Affiliate, in advance, to receive such communications from Affiliate.
- Must clearly and conspicuously identify that the message is an advertisement or solicitation, unless recipient has given prior affirmative consent to receipt of the message. Affirmative consent means that the recipient expressly consented to receive the message either in response to a clear and conspicuous request for such consent or at the recipient's own initiative;
- Must clearly and conspicuously notify the recipient of the opportunity to decline to receive further commercial e-mail from Affiliate;
- Must provide a valid physical postal address of Affiliate;
- Must provide a functioning return e-mail address or other Internet-based mechanism, clearly and conspicuously displayed, that a recipient may use to submit, in a manner specified in the commercial e-mail, a reply e-mail or other Internet-based mechanism a request not to receive future commercial e-mail from Affiliate. The return address or Internet-based mechanism must be capable of receiving such messages for at least thirty (30) days after the transmission of the original message. Affiliate may not send subsequent commercial e-mails more than ten (10) business days after the recipient's request not to receive further e-mails has been received (unless there is a subsequent affirmative consent by the recipient to receive such e-mails.) Once Affiliate receives such a request, Affiliate may not sell, lease, exchange or otherwise transfer or release the e-mail address of the recipient.
- May not contain materially false or materially misleading header information, or deceptive subject heading.
- May not contain sexually oriented material.
Affiliate may not initiate or assist in the transmission of commercial e-mail using an e-mail address: (1) that was collected through automated means, from a third party web site in violation of that third party's posted privacy policy, or (2) that was generated through automated means by combining names, letters or numbers into numerous permutations. Affiliate may not conduct fraudulent activities related to electronic mail, including but not limited to the material falsification of header or transmission information, the unauthorized use of someone else's computer to send bulk commercial e-mail, and the registration of an e-mail account that materially falsifies the identity of the actual registrant.
In addition, in the event of a breach of this E-mail Agreement by Affiliate and/or a third party or licensee, in addition to all other remedies available to it, Hyatt Fruit Company shall have the right to refuse to make payments to Affiliate as a result of Affiliate's efforts promoting Hyatt Fruit Company, which efforts cannot be verified by Affiliate as having complied with the terms and conditions of this E-mail Agreement.
Affiliate agrees to indemnify, defend and hold Hyatt Fruit Company harmless from any cost, expense or liability arising out of any breach or alleged breach of your obligations under this E-mail Agreement.
Assignment
This Agreement and the rights and obligations hereunder may not be assigned by you without prior written consent of Hyatt Fruit Company.
Reservation of Rights
Hyatt Fruit Company may terminate this Agreement at any time if your site is determined (at our sole discretion) to be unsuitable for the Program, even if your site has not changed since the time that your Affiliate Program application was accepted. Hyatt Fruit Company also reserves the right to monitor Affiliate sites at any time to determine whether they are in compliance with this Agreement.
Governing Law
This Agreement will be governed by the laws of the United States and the State of Florida, 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 Vero Beach, Florida, 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 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.
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