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Important Information for Hers, Inc. Affiliate Program
HIMS & HERS
AFFILIATE PROGRAM
PARTNER AGREEMENT
Thank you for considering the Hims & Hers Affiliate Program (the “Program”). We will evaluate your inquiry, and if approved, you will be eligible to participate in the Program, on the terms and conditions set forth below (collectively, this “Agreement”). Participation in the Program and any rights and licenses granted under this Agreement are expressly conditioned on and subject to agreement by Partner (defined below) of all the terms and conditions set forth in this Agreement.
This Agreement is between Hims & Hers Health, Inc. and/or its subsidiaries (collectively, “Hims & Hers,” “we,” or “us”) and the individual or entity participating in the Program and/or any individual, agent, employee, representative, network, parent, subsidiary, affiliate, successor, related entities, assigns, and all other individuals or entities acting on its behalf, at its direction, under its control, or under the direction or control of the same individual or entity who controls it (collectively, “you” or “Partner”). Hims & Hers operates the Program through the Cuelinks platform (the “Platform”).
BY CLICKING “I AGREE”, CHECKING A RELATED BOX TO SIGNIFY YOUR ACCEPTANCE, USING ANY OTHER ACCEPTANCE PROTOCOL PRESENTED THROUGH THE PLATFORM OR OTHERWISE AFFIRMATIVELY ACCEPTING THIS AGREEMENT, YOU HEREBY REPRESENT AND WARRANT THAT (A) YOU ARE AT LEAST 18 YEARS OF AGE, (B) YOU ARE DULY AUTHORIZED TO ENTER INTO AND BIND PARTNER TO THIS AGREEMENT, AND (C) YOU HAVE READ, ACCEPTED, AND AGREED ON BEHALF OF PARTNER TO BIND PARTNER TO THIS AGREEMENT.
If you disagree with this Agreement or any terms or conditions herein, Partner’s sole remedy is to discontinue participation in the Program. We reserve the right to revise or remove any part of this Agreement in our sole discretion at any time upon notice to you, which may be provided by posting a change notice on the Platform or otherwise making reasonable efforts to communicate the change to you. Partner’s continued participation in the Program after such notice has been provided constitutes Partner’s acceptance of this Agreement as modified by such changes.
AFFILIATE PROGRAM TERMS AND CONDITIONS
Affiliate Links. After acceptance into the Program, Partner may be given access to one or more Links (defined below) that Partner may display on the Partner Website (defined below) or embed into Partner Materials (defined below). Partner may not allow any third party to display, embed, or otherwise use any Link without Hims & Hers’ prior written authorization. In any case, Partner is responsible for the use of all Links and must ensure any such use complies with this Agreement.
“Hims & Hers Website” means the domains, URLs, and mobile apps owned and operated by Hims & Hers.
“Link” means a unique link or other code or functionality provided by or on behalf of Hims & Hers to Partner to be displayed on a Partner Website or embedded into Partner Materials.
“Partner Materials” means promotional materials, ads, or other content used by Partner to direct traffic to the Hims & Hers Website.
“Partner Website” means the domain(s), URL(s), or mobile application(s) owned and operated by Partner.
Partner Obligations.
Partner must:
Ensure the Partner Materials and the Partner Website and any other websites, applications, or materials that display, embed, or otherwise use a Link do not include any content that:
- is unlawful, defamatory, obscene, offensive, abusive, harassing, threatening, harmful, discriminatory, vulgar, or pornographic;
- is inappropriate with respect to race, gender, sexuality, ethnicity, other intrinsic characteristic, or otherwise as determined in Hims & Hers’ sole discretion;
- promotes violence, illegal activities, any form of hate speech, or discrimination based on race, sex, gender, religion, nationality, ethnic origin, disability, sexual orientation, age, or other protected status;
- invades any third party’s privacy or publicity rights;
- infringes any third party’s intellectual property rights;
- is false or misleading;
- is a promotional website posing as a non-promotional unbiased source of information (e.g., a “fake blog” “flog” or “flack blog”);
- is a review site purporting to provide unbiased, neutral, or objective reviews but actually accepts incentives in exchange for better rankings, recommendations, or reviews;
- appears to be unbiased journalism when it is in fact part of a marketing campaign;
- makes any recommendation or expresses any opinion about or otherwise discusses the trading of Hims & Hers’ stock;
- contains software downloads that could enable diversions of payments from other partners in the Program;
- resembles any Hims & Hers Website or could lead a user to believe it is owned or operated by Hims & Hers;
- doesn’t have legally required or otherwise appropriate disclosures presented clearly and conspicuously;
- is directed at users under age 13;
- states or implies it has been endorsed by a medical professional;
- endorses Hims & Hers unless we have given our prior written approval for such endorsed content; and/or
- contains viruses, trojan horses, worms, time bombs, cancel-bots, corrupted files, spyware, or any other similar software or programs that may damage the operation of another’s computer or property.
Comply with all applicable laws, rules, regulations, and guidelines, including but not limited to privacy laws, all rules and guidelines of the Federal Trade Commission (the “FTC”), the Telephone Consumer Protection Act, the CAN-SPAM Act, and any state law equivalent of any of the foregoing (collectively, “Applicable Laws”).
In accordance with the foregoing, disclose the material connection to Hims & Hers as described in the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising.
Cooperate with Hims & Hers to ensure compliance with Applicable Laws, including with respect to any opt-out and/or suppression lists provided by Hims & Hers.
Comply with all branding and content guidelines provided by Hims & Hers.
Use any content provided by Hims & Hers only as instructed by Hims & Hers and with no modifications.
Comply with Hims & Hers’ Trademark Policy described below.
Immediately upon the request of Hims & Hers remove and stop using any content related to Hims & Hers, including any Links and the Hims & Hers Trademarks.
Partner must not:
Collect, process, disclose, or otherwise use any individual’s personal information in any way that violates Applicable Laws.
Knowingly collect, process, disclose, or otherwise use any personal information of any individual under age 13 with respect to this Program via the Link.
Create a false identity or duplicative accounts for the purpose of misleading or impersonating any person or entity.
Offer any warranty, guarantee, or representation relating to Hims & Hers’ products or services, including as to the efficacy and safety of any products available through the Hims & Hers Website, without Hims & Hers’ prior written approval.
Use, display, or offer to users any coupons, discount, or promotional codes unless such coupon, discount, or code has been provided to Partner by Hims & Hers for Partners’ use through the Program.
State or imply that Hims & Hers products or services are available to customers outside the United States.
Use links in Partner search ads that automatically redirect the user to the Hims & Hers Website.
Use any Hims & Hers domains for any display or destination URL listings used in paid search campaigns or clock or mask the Hims & Hers website URL in search engines.
Engage in or allow fraudulent clicks.
Operate any parked domains or banner farms.
Transmit through the Program or otherwise expose Hims & Hers to any virus, bug, Trojan horse, malware, disabling device, or other harmful code.
Serve ad creative or drive traffic to ad creative using any downloadable applications or software (e.g., adware, pop-up/pop-under technologies, plug-ins) or serve ad creative that is not initiated by the affirmative action of the user.
If Partner violates any of the above obligations, without limiting Hims & Hers’ rights to any other legal and equitable remedies, Hims & Hers may withhold payment and immediately terminate Partner’s participation in the Program.
Trademark Policy. Hims & Hers has invested significant time and resources to developing our brands and through these efforts has developed a substantial reputation and goodwill in and to our family of trademarks throughout the United States and other jurisdictions worldwide (collectively, the “Hims & Hers Trademarks”), including but not limited to the registered and unregistered trademarks embodying our Hims brand, our Hers brand, our Hims & Hers brand, and our Apostrophe brand. As such, Partner may not use the Hims & Hers Trademarks except as expressly authorized in writing by Hims & Hers. Without limiting the generality of the foregoing, Partner must comply with the following regarding the Hims & Hers
Trademarks:
- Protected SEM Bidding Keywords. Partner must not bid on any Protected SEM Bidding Keywords (listed below) in any search engine auction.
- Negative Keywords. Partner must employ “negative keywords” directing the search engine not to display any Partner advertisement in response to a search that includes any of the Protected SEM Bidding Keywords.
- Prohibited SEM Display URL Content. Partner must not use any Hims & Hers Trademark, or any misspelling or close variation of any Hims & Hers Trademark, in the SEM Display URL in any combination in the top-level domain name.
- Prohibited Website Domain Keywords: Partner may not own or operate any website containing any Hims & Hers Trademark, or any misspelling or close variation of any Hims & Hers Trademark, in the top-level domain.
The following keywords are “Protected SEM Bidding Keywords”:
Hims: hims, forhims, wearehims or any combination, variation, or misspelling of our brand terms.
Examples: hims, forhims, wearehims, hims+term, hims review, hims reviews, hims scam, hims legit, forhims review, forhims reviews, forhims scam, forhims+term, himms, him, himms+term, him+term, hims.com, forhims.com, wearehims.com, himms.com, him.com
Hers: hers, forhers, wearehers or any combination, variation, or misspelling of our brand terms.
Examples: hers, forhers, wearehers, hers+term, hers review, hers reviews, hers scam, hers legit, forhers review, forhers reviews, forhers scam, forhers+term, herrs, herrs+term, hers.com, forhers.com, wearehers.com, herrs.com, her.com
Payments. Subject to Partner’s compliance with this Agreement, Partner will be entitled to payments in accordance with the Hims & Hers fee schedule available on the Platform, which may be changed at any time with or without notice, or as otherwise agreed on in writing between Partner and Hims & Hers (such payments collectively, “Fees”). Unless otherwise agreed on in writing by Partner and Hims & Hers, payment of Fees to Partner will be made through the Platform in accordance with the Platform’s terms and conditions. Hims & Hers will determine the Fees owed to Partner based on Hims & Hers’ own records and accounting. Hims & Hers may withhold or adjust Fees that Hims & Hers reasonably determines were unearned, including as a result of fraudulent activity or any other non-compliance with this Agreement.
License. Subject to Partner’s compliance with this Agreement, Hims & Hers grants Partner a limited, revocable, non-exclusive, non-sublicensable, non-transferable, non-assignable license during the Term (defined below) to (a) display or embed the Link on the Partner Website and/or the Partner Materials and (b) use the Hims & Hers Trademarks as specified by Hims & Hers, in each case of clauses (a) and (b) for the sole purpose of promoting Hims & Hers’ products and services as a part of the Program in accordance with this Agreement. At the end of the Term without any action required by Hims & Hers, or during the Term upon Hims & Hers’ request, Partner shall immediately remove any Links and the Hims & Hers Trademarks from the Partner Website and Partner Materials and cease all further use of the Links and Hims & Hers Trademarks.
Ownership. Partner acknowledges and agrees that: (a) Hims & Hers owns all right, title, and interest in and to the Hims & Hers Trademarks, solely and exclusively, in perpetuity throughout the universe; (b) nothing herein should be deemed to give Partner rights to the Links or the Hims & Hers Trademarks or any other Hims & Hers’ intellectual property except as explicitly set forth herein; (c) all data supplied via the Link and all intellectual property rights in such data, and any and all goodwill generated by Partner’s activities will accrue to and belong to Hims & Hers exclusively; (d) all goodwill associated with the Hims & Hers Trademarks will inure solely to the benefit of Hims & Hers; (e) any comments or other feedback that Partner provides to Hims & Hers regarding the Hims & Hers Websites, products, or services is the sole exclusive property of Hims & Hers; and (f) Partner may not use any other Hims & Hers intellectual property without Hims & Hers prior written authorization.
Term and Termination. This Agreement is effective upon Partner’s acceptance into the Program and continues until Partner’s participation in the Program is terminated (the “Term”). Hims & Hers may terminate Partner’s participation in the Program at any time with notice to Partner. Partner may terminate Partner’s participation in the Program upon written notice to Hims & Hers in accordance with the notice provision below. Upon termination, Partner will: (a) immediately cease all further use of all Hims & Hers Trademarks; and (b) unless Partner’s participation in the Program was terminated due to Partner’s non-compliance with this Agreement, be entitled to Fees earned by Partner up to the termination date. Provisions in this Agreement related to intellectual property ownership, indemnification, limitation of liability, and confidentiality, and any other provision that by its nature is intended to survive termination, will survive termination of this Agreement.
Representations and Warranties. Partner represents and warrants that: (a) Partner operates Partner’s business, including the performance of all activities in connection with this Agreement, ethnically and in compliance with all Applicable Laws; (b) Partner will make diligent efforts to favorably promote Hims & Hers’ products and services, all in accordance with the terms and conditions of this Agreement; (c) Partner will not use the Hims & Hers Trademarks except as expressly authorized in writing by Hims & Hers; (d) Partner has all rights necessary to enter into and to perform Partner’s obligations under this Agreement, and Partner’s activities in connection with this Agreement will not violate, misappropriate, or infringe the rights of any third party or conflict with any other agreement to which Partner is obligated; (e) all information provided by or on behalf of Partner through the Platform is accurate; and (f) Partner has never received or been subject to any inquiry, investigation, or negative action from any regulatory authority, including but not limited to a civil investigative demand, subpoena, or untitled or warning letter, or any other letter or censure from the FTC or the Food and Drug Administration (each, a “Regulatory Action”), and Partner will immediately notify Hims & Hers if Partner receives or is subject to any Regulatory Action.
Confidentiality. Partner shall not disclose to any third party any information that Partner knows, or reasonably should know, Hims & Hers considers confidential or proprietary information (“Proprietary Information”), except (i) as required by law or regulation or in order to comply with the order of a court or other governmental body, provided that Partner first gives written notice to Hims & Hers and takes reasonable and lawful actions to avoid and/or minimize the extent of such disclosure (e.g., by seeking to obtain a protective order) and (ii) Partner may disclose Proprietary Information on an as-needed basis to its employees, accountants and legal, financial and marketing advisors, provided that such recipients agree to treat such information as confidential and only use it as needed for Partner to exercise its rights and obligations under this Agreement. Upon the end of the Term, Partner must immediately cease using all Proprietary Information and destroy all Proprietary Information in its possession.
Publicity. Partner must obtain Hims & Hers’ prior written consent before publishing or releasing any press release, or other public statement concerning this Agreement or the relationship between the parties.
Indemnification. Partner shall indemnify, defend, and hold harmless Hims & Hers (and its affiliated entities, and its and their officers, shareholders, directors, employees, representatives, contractors, and agents, and the successors, heirs, and assigns of any of these) from and against any and all losses, liabilities, claims, proceedings, suits, actions, investigations, costs, damages, expenses, judgments, fines, and penalties (including reasonable attorneys’ fees and litigation expenses), and injuries of any kind arising out of or related to Partner’s (a) breach of this Agreement, including the representations, warranties, covenants, and/or obligations set forth herein, or (b) fraud, violation of Applicable Law, negligence, or willful misconduct. Hims & Hers may control the defense of any claim by any third party, including any governmental entity, for which we are entitled to indemnification, and Partner agrees to provide Hims & Hers with such cooperation as is reasonably requested.
Acknowledgements. Partner acknowledges and agrees that Hims & Hers (a) has the right to add, delete, or modify its products and services and prices at any time for any reason and to reject any order; (b) may cooperate with legal authorities and third parties in the investigation of any suspected or alleged crime or civil wrong; and (c) may disclose any information Hims & Hers deems necessary to satisfy any Applicable Law, legal process, or government request, in Hims & Hers’ sole discretion.
Warranty Disclaimer. HIMS & HERS PROVIDES THE PROGRAM, INCLUDING BUT NOT LIMITED TO THE LINKS AND OTHER MATERIALS PROVIDED AND ALL LICENSES GRANTED HEREUNDER, ON AN “AS IS” BASIS. HIMS & HERS, TO THE FULLEST EXTENT ALLOWED BY LAW, EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE USE OF AND ALL COMPONENTS AND ELEMENTS OF THE PROGRAM AND THE HIMS & HERS WEBSITE, AND HIMS & HERS’ PRODUCTS, SERVICES, INFORMATION, CONTENT, AND OTHER MATERIAL, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE IN TRADE. ADDITIONALLY, HIMS & HERS MAKES NO REPRESENTATION AND EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE OPERATION OF THE PROGRAM OR THE HIMS & HERS WEBSITE WILL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR VIRUS-FREE, AND IT WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS, ERRORS, INSECURITY, OR VIRUSES.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL HIMS & HERS BE LIABLE TO YOU OR ANY THIRD PARTY REGARDING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGY, GOODS OR SERVICES; (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL; OR (C) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE AMOUNT PAID OR PAYABLE HEREUNDER DURING THE PREVIOUS 12 MONTHS, IN EACH CASE EVEN IF HIMS & HERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
General Provisions.
No Referrals. Hims & Hers and Partner acknowledge and agree that the Fees are solely to compensate Partner for Partner’s performance of activities under this Agreement and are not meant to encourage, persuade, prompt, or induce anyone to seek any medical consultation or prescription for a product offered through the Hims & Hers Website.
Notice. Any notice to Partner in connection with this Agreement may be given by email sent to the email address provided by Partner to Hims & Hers through the Platform or any other email address Partner has provided to Hims & Hers as a contact for Partner. It is Partner’s sole responsibility to ensure that the email address provided to Hims & Hers remains functional and is checked regularly by Partner. Any notice to Hims & Hers in connection with this Agreement will be effective only if in writing and sent by email to [email protected] with a copy emailed to [email protected]. Notice is effective at the time it is sent.
Independent Contractors. This Agreement does not create any partnership, joint venture, employment, or other agency relationship between Hims & Hers and Partner. It is understood that Partner’s status hereunder is that of an independent contractor. Partner may not enter into any contract on Hims & Hers’ behalf or bind Hims & Hers in any way. Partner is solely responsible for any taxes incurred in connection with this Agreement, including the withholding and payment of any federal, state, and local taxes derived from Partner’s net income and other payroll taxes, workers' compensation, disability benefits or other legal requirements applicable to Partner.
Third Party Beneficiaries. Hims & Hers and Partner agree that, except as expressly set forth in this Agreement, this Agreement does not create or establish any third party beneficiary status rights or their equivalent in any other individual, subcontractor, or other third party, and no individual, subcontractor or other third party shall have any right to enforce any right or enjoy any benefit that is created or established under this Agreement.
Governing Law and Venue. This Agreement will be interpreted in accordance with the laws of the State of California without regard to its conflicts of laws principles. Any claim between the Hims & Hers and Partner arising out of this Agreement will be venued exclusively in a court of competent jurisdiction in the State of California.
Severability. If any part of this Agreement is held illegal or unenforceable by a court of competent jurisdiction, it will be modified to the minimum extent necessary to make it legal and enforceable.
Assignment and Delegation. Partner may not assign, transfer, or delegate any rights, duties or obligations under this Agreement, in whole or in part, to any person or entity without the prior written approval of Hims & Hers and any assignment, transfer, or delegation made in violation of the foregoing is null and void. Hims & Hers may freely assign this Agreement. This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto.
Waiver. No waiver of any breach of any term or condition of this Agreement will constitute a waiver of any subsequent breach. A waiver of any of the terms of this Agreement must be in writing signed by the party against whom enforcement is sought. A failure or delay by a party to enforce any right under this Agreement is not a continuing waiver of such right.
Entire Agreement. This Agreement and any other agreements that Hims & Hers and Partner execute related to the Program (any such other agreement, a “Supplemental Agreement”) contain the entire agreement and understanding between Hims & Hers and Partner and supersede all prior written and oral understandings and negotiations relating to the subject matter hereof, including any prior versions of this Agreement. If there is a conflict between any provision of this Agreement and any Supplemental Agreement, this Agreement will govern and control unless the Supplemental Agreement expressly states that such conflicting provision in the Supplemental Agreement governs and controls.
Interpretation. All headings are for convenience only and should not be used for interpreting this Agreement. All references to “including” in this Agreement mean “including without limitation”. Defined terms apply equally to the singular, plural, and possessive forms of the terms defined. Any reference to this Agreement means this Agreement as it may be amended, supplemented, or otherwise modified from time to time. The word “hereunder” means this Agreement in its entirety and not any particular provision of this Agreement.