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AFFILIATE NETWORK OPERATING AGREEMENT |
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Hanesbrands Direct, LLC (hereinafter "Hanesbrands") and you, the affiliate (hereinafter "you" or "your" or "Affiliate"), are parties to this Affiliate Network Operating Agreement ("Agreement"). |
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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. |
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1. Definitions |
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"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. |
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"Hanesbrands Affiliate Network" means the Affiliate Sites of all Hanesbrands accepted Affiliates, collectively and the Hanesbrands Site as identified below. |
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"Affiliate Site" means each Affiliate's web site which, pursuant to this Agreement with Hanesbrands, provides Hanesbrands Links to the Hanesbrands Site. |
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"Hanesbrands" means Hanesbrands Direct, LLC. |
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"Hanesbrands Site" means Hanesbrands' web site, www.ChampionUSA.com. |
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"LinkShare" means the third party beneficiary LinkShare Corporation under this Agreement. |
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"The LinkShare Network™" means the third party network administered by LinkShare that tracks, calculates and administers the Hanesbrands Affiliate Network on behalf of Hanesbrands. |
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2.Enrollment in the Hanesbrands Affiliate Network |
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To begin the enrollment process, read and accept this Agreement and continue the steps to submit a complete Affiliate Membership Agreement and any other forms or steps that LinkShare may so require via the LinkShare Site or the Hanesbrands Site. Hanesbrands will notify you of its acceptance or rejection in a timely manner. Hanesbrands may reject your application for any reason, in its sole discretion. Without limiting the foregoing, Hanesbrands will reject your application if you are an employee of Hanesbrands or its affiliates or your web site includes content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise unsuitable, non-US based or serving a non-US based audience, or otherwise objectionable to Hanesbrands. |
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3.Hanesbrands Links |
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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 graphical and textual links that point to Hanesbrands approved specific Universal Record Locaters or "URLs" ("Hanesbrands Link(s)"), 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. |
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B. You agree to:
- (i) cooperate fully with Hanesbrands in order to establish and maintain the Hanesbrands Links
- (ii) display on your Affiliate Site only those Hanesbrands Links to the Hanesbrands Site that are provided to you by Hanesbrands;
- (iii) upon request by Hanesbrands, promptly replace any Hanesbrands Link with a new Hanesbrands Link provided by Hanesbrands from time to time;
- (iv) display such Hanesbrands Links prominently in the relevant sections of your Affiliate Site;
- (v) have a top-level domain name; and
- (vi) be fully functional at all levels (i.e. no "under construction" sites or sections).
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C. You acknowledge that, through your use of the Hanesbrands Links, Hanesbrands may receive information from or about users of your Affiliate Site, you agree that Hanesbrands may use and disclose any such information, and you represent and warrant that the foregoing is not and will not be inconsistent with your Privacy Policy, if any. |
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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. |
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E. In addition, Hanesbrands encourages (but does not require) you to include a Hanesbrands Link to the home page of the Hanesbrands Site. |
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4. Commissions |
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A. You will receive commission fees, based on the Net Sales of Eligible Purchases (both as hereinafter defined) according to the commission schedule established by Hanesbrands and set forth in the Affiliate Program section of the applicable Hanesbrands Site (hereinafter "Commission(s)") only with respect to those Hanesbrands products that are:
- (i) sold by Hanesbrands via the Hanesbrands Site during the term of this Agreement,
- (ii) purchased by a customer during a visit to the Hanesbrands Site that was accomplished either
- (a) via a Hanesbrands Link from your Affiliate Site, or
- (b) within seven days after accessing the Hanesbrands Site via a Hanesbrands Link from your Affiliate Site; provided that,
- (1) the customer used the same computer and browser during both the initial visit and the visit during which the purchase was made, and
- (2) the customer did not, during the seven-day period following the initial visit, delete (or set the computer to automatically delete) the cookie placed by Hanesbrands on the customer's computer at the time of the initial visit,
- (iii) shipped by Hanesbrands, and
- (iv) for which Hanesbrands has received full payment; (each, an "Eligible Purchase").
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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, amounts due to credit card fraud and bad debt, and credits for returned products ("Net Sales"). |
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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). |
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C. You shall be responsible for any taxes required to be paid with respect to Commissions Hanesbrands pays to you. |
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5. Hanesbrands' Obligations |
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A. You shall not be a party to any transaction between Hanesbrands and a customer who purchases from Hanesbrands via your Affiliate Site. All such customers shall be subject to Hanesbrands' standard applicable rules, terms, policies and procedures, as such polices 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. |
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B. Hanesbrands will give you a password that will allow you to access a web site that is updated each business day 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. |
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6. Licenses and Use of the Hanesbrands Logos and Trademarks |
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A. Hanesbrands grants to you a non-exclusive, non-transferable, revocable, limited right and license 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. |
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B. You shall not use any Licensed Materials (i) for purposes other than advertising the Hanesbrands products on your Affiliate Site without obtaining the prior written consent of your Hanesbrands account executive, or (ii) in any manner that disparages Hanesbrands or otherwise portrays Hanesbrands in a negative light. 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. |
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C. You grant to Hanesbrands a non-exclusive license 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. |
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D. These licenses shall terminate upon expiration or earlier termination of this Agreement. |
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7. Obligations Regarding Your Affiliate Site |
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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 or illegal. |
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B. You shall not:
- (i) cause your Affiliate Site to be a copy of or to resemble the look and feel of the Hanesbrands Site;
- (ii) create the impression that your Affiliate Site is the Hanesbrands Site or any part of it;
- (iii) frame any page of the Hanesbrands Site with your Affiliate Site (including but not limited to pages of the Hanesbrands Site opened by users of your Affiliate Site via a Hanesbrands Link);
- (iv) include price information regarding any Hanesbrands products on your Affiliate Site;
- (v) infringe, misappropriate or violate any third party's copyrights, trademarks or other intellectual property rights on your Affiliate Site;
- (vi) make any representations, warranties (express or implied) or covenants regarding Hanesbrands, the Hanesbrands Site or the Hanesbrands products on your Affiliate Site;
- (vii) send unsolicited commercial advertisements using Hanesbrands Marks (as hereinafter defined);
- (viii) publish or distribute any statement or written material that makes reference to Hanesbrands or this Agreement without first submitting such material to Hanesbrands and receiving its written consent;
- (ix) violate any federal, state or local law, rule or regulation or Hanesbrands prohibition with respect to the subject matter of this Agreement including, but not limited to claims for unsolicited email (spamming) or under the CAN-SPAM Act of 2003, or other violations of third party intellectual property rights, rights of privacy, including but not limited to the Children's Online Privacy Protection Act of 1998 ("COPPA"), or publicity rights;
- (x) directly or indirectly provide any incentives, kickbacks, discounts or other forms of consideration for purchasing from Hanesbrands via your Affiliate Site; or
- (xi) set up your site in such a manner that pulls Internet traffic away from the Hanesbrands site;
- (xii) "scrape" or "spider" the Hanesbrands site or its affiliates' sites for content (such as images, logos or text);
- (xiii) employ the use of any type of software download or technology which attempts to intercept or redirect traffic or Commissions to or from any website; or
- (xiv) attempt to modify or alter the Hanesbrands site in any way.
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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) or have not registered and will not register any Hanesbrands or it 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," "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," "Hanes t-shirts," "justmysize.com," "Hanesbrands.com," "Hanes discounts," and "Hanes coupons";
- (iii) you will not utilize "metatags" that contain any Hanesbrands Marks in your Affiliate Site or otherwise cause your Affiliate Site to appear as a search result in any search engine; and
- (iv) you will not redirect the URL of your Affiliate Site to the Hanesbrands Site or to any other web site.
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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. |
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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 you are not in compliance, Hanesbrands may terminate this Agreement immediately. |
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8. Agreement Term |
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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. |
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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) After a reasonable period of time to allow for returns of products ordered through your Affiliate Site, Hanesbrands shall make its final Commission payment to you. Notwithstanding the foregoing, if products for which you were paid Commissions are returned after such payment, Hanesbrands will bill you for, and you agree to repay to Hanesbrands, the Commissions you received with respect to such products.
- (iii) The terms and conditions of this Agreement shall survive the termination hereof to the extent necessary to carry out the intent of the parties as expressed herein.
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9. Disclaimers |
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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. |
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10. Representations and Warranties |
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You represent and warrant to Hanesbrands as follows: |
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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. |
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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. |
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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. |
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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. |
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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. |
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F. If you are a natural person (as opposed to a corporation or other entity), you are at least 18 years of age. |
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11. Confidentiality |
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Except as otherwise provided in this Agreement or with the consent of the other party hereto, each of the parties 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 either party or any of Hanesbrands' 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. Notwithstanding the foregoing, each 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. |
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12. Limitation of Liability |
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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. |
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13. Indemnification |
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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' 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; (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. |
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14. Miscellaneous |
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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. |
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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. |
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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. |
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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 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. |
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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 |
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