Free Shipping

HMX Group Marketer Terms and Conditions

These HMX Group Marketer Terms and Conditions (the "Agreement") contain the complete terms and conditions that apply to your participation as an affiliate in the Affiliate Network of HMX Group (the "Program"). As used in this Agreement, "we", "us", or "HMX Group" means HMX Group and its subsidiaries and related entities, "you" means the applicant party, and "HMX Site" means any of the following Web sites: www.hickeyfreeman.com, www.hartschaffnermarx.com, www.bobbyjones.com, www.misook.com, www.christopherblue.com, www.wornapparel.com, or www.sansabelt.com.

BY SUBMITTING YOUR PROGRAM APPLICATION AND PARTICIPATING IN THE PROGRAM YOU ARE CONFIRMING THAT YOU HAVE READ THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS. THIS AGREEMENT SUPPLEMENTS THE AGREEMENT YOU HAVE PREVIOUSLY EXECUTED WITH LINKSHARE CORPORATION. TO THE EXTENT THAT ANY OF THE TERMS OR CONDITIONS SET FORTH IN THIS AGREEMENT CONFLICT WITH THOSE SET FORTH IN YOUR AGREEMENT WITH LINKSHARE, THIS AGREEMENT SHALL CONTROL.

1. Enrollment in the Program
To begin the enrollment process, you must submit a complete Program application ("Application"). Program Applications are made available on our site through the online advertising network operated by LinkShare (the "LinkShare Network"). We will evaluate your Application and will notify you of your acceptance or rejection for participation in the Program. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program for any reason. Unsuitable sites include, but are not limited to, those that:

  • contain or promote materials that are sexually explicit or that could be deemed obscene, pornographic or excessively violent;
  • promote violence or hate toward any persons or groups;
  • promote discrimination based on race, sex, age, religion, nationality, disability or sexual orientation;
  • advocate the adoption or promote the ideology of a specific religious or political viewpoint (as opposed to discussing multiple religious or political viewpoints);
  • promote illegal activities;
  • promote the sale or use of tobacco products, alcohol products or gambling;
  • violate any federal, state or local law (including privacy and “spam” laws);
  • contain material that, in our sole judgment, is defamatory, fraudulent or harassing;
  • misrepresent themselves as one of our sites by using the “look and feel” of or text from any HMX Site;
  • include any trademark of HMX Group or its affiliates, or any variation or misspelling thereof, in their domain names – for example, a domain name such as hikyfreeman.com, krisblue.com, bobbyjonesclothes.com, misooksweaters.com, or sansabeltt.com would be unsuitable;
  • include any trademark of HMX Group or its affiliates, or any variation or misspelling thereof, in any username, group name, or other identifier on any social networking website;
  • violate intellectual property rights of HMX Group or its affiliates;
  • do not clearly state an online privacy policy to their visitors;
  • require a user name and password to access;
  • are non-US based sites or are sites that primarily serve a non-US based audience;
  • are unable to direct a reasonable amount of traffic by way of sales volume, clicks and page views to the HMX Sites;
  • are considered (in our sole judgment) offensive or inappropriate;
  • excessively use pop-ups;
  • require downloads and/or unknowingly download software to visitors’ computers;
  • link to or provide a portion of their commission or affiliate benefits to sites or organizations that violate any of the above criteria;
  • are under construction; or
  • do not have a clear focus on e-commerce (sites that do not sell products or feature merchants will need to submit a business plan describing how they will drive revenue for HMX Sites).

2. Qualifying Links
If you are accepted into the Program, we will make available to you Qualifying Links that, subject to the terms and conditions of this Agreement, you may display as often and in as many areas on your site as you desire. A "Qualifying Link" is a link from a website to any HMX Site using one of the Universal Record Locators ("URLs") or graphic links provided by HMX Group, the LinkShare Network or by other means selected by us for use in the Program. HMX Group must approve each and every website that links to an HMX Site through a Qualifying Link. If you use a Qualifying Link to link a website to an HMX Site without seeking explicit authorization, your continued use of that Qualifying Link shall be considered a breach of this Agreement. Continued use of the Qualifying Link; however, will subject such websites to the Terms and Conditions of this Agreement.

Qualifying Links will serve to identify your website as a member of the Program and will establish a link from a website to an HMX Site. All Qualifying Links that you will use in the Program will be provided to you from the LinkShare Network or by other means selected by us. You agree that you will display on any website containing a Qualifying Link only those logos, trade names, trademarks, graphic images and similar identifying material ("Licensed Materials") that are provided by us or by the LinkShare Network, and you will replace such images with any new materials provided by us or the LinkShare Network from time to time throughout the term of this Agreement. A web widget that is pre-approved in writing by HMX Group for use on your website may be considered a Qualifying Link for purposes of this Agreement. Accordingly, web widgets are subject to all of the Terms and Conditions of this Agreement that apply to Qualifying Links.

Only valid Qualifying Links will be tracked for purposes of determining Referral Fees that you may be eligible to receive on sales of Qualifying Products (as defined below) generated through your participation in the Program.

Only Qualifying Links may be used to link a website to areas within an HMX Site. You may not link directly to an HMX Site without use of a Qualifying Link.

You acknowledge that, by participating in the Program and placing a link to an HMX Site (or any category page therein) on any website through use of a Qualifying Link, we may receive information from or about visitors to such website or communications between such website and those visitors. Your participation in the Program constitutes your specific and unconditional consent to and authorization for our access to, receipt, storage, use, and disclosure of any and all such information, consistent with the policies and procedures set forth in our Privacy Policy.

3. Prohibitions
As a condition to your acceptance and participation in the Program, you agree to not undertake or engage in the following practices:

  • use our name or trademarks, or any variation or misspelling thereof, in any manner not expressly authorized by this Agreement;
  • use our name or trademarks, or any variation or misspelling thereof, in the domain name(s) of your site(s), on any meta tags of Web pages comprising your site(s), in hidden text or source code, or in searchable keywords;
  • bid on keywords, search terms or other identifiers (including any variations or misspellings thereof) related to any HMX Group trademark at any website that provides search engine services and that results in driving traffic to any website, other than an HMX Site, including your website;
  • engineer your site in a manner that pulls Internet traffic away from the HMX Sites via natural search optimization;
  • link any Qualifying Link to any website other than an HMX Site, including, for example, your own website;
  • publish, link to, sell, otherwise distribute, or place a Qualifying Link on any social networking sites, including, but not limited to, Facebook, MySpace, and Twitter;
  • publish, link to, sell, otherwise distribute, or place a Qualifying Link on the same page or in close proximity to any Objectionable Content. For purposes of this Agreement, "Objectionable Content" means any material, including textual, audio or video material, which is offensive (including hate speech or violence against a particular group of people); contains any nudity, explicit violence or sexual material; contains depictions of violent or sexual acts; is defamatory to any group or individual; or promotes alcohol, tobacco, or gambling/lottery;
  • attempt to modify or alter any HMX Site in any way;
  • make any representations, either express or implied, or create an appearance that a visitor to your site is visiting an HMX Site, e.g., "framing" an HMX Site, without our prior written approval;
  • employ, use, or receive any direct or indirect benefit from, any "cookie stuffing" methods (e.g., use of "cookie stuffing" to cause LinkShare’s tracking systems to conclude that a user has clicked through a Qualifying Link - and to pay commissions accordingly - even if the user has not actually clicked through any such link);
  • participate in ad networks or search content networks;
  • engage in any direct or indirect relationships with Internet Service Providers or mobile carriers that results in the delivery or act of address bar keyword and URL error trafficking;
  • employ the use of any type of software download or technology which attempts to intercept or redirect traffic or Referral Fees to or from any website;
  • use any of our trademarks or Licensed Materials (as defined in Section 2), provided to you as a result of your participation in the Program to advertise or engage in services which result in a sale occurring on your website, whether or not you then have the item fulfilled through an HMX Site;
  • without our prior written approval, use any of our trademarks, or any Licensed Materials, in an advertisement that is not created or provided by us in any way that might suggest, imply, or mislead a visitor to your website into believing that HMX Group or any related entity created or sponsored such advertisement;
  • re-distribute Licensed Materials (as defined in Section 2) to HMX Group competitors;
  • re-distribute, display or syndicate Licensed Materials or our datafeed, including any product information set forth therein, to any third party partner, network or agency without our prior written authorization;
  • install spyware on another person’s computer; cause spyware to be installed on another person’s computer, or use a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising other content on a website in a way that interferes with a person’s ability to view that website;
  • display any material on a website containing a Qualifying Link which contains viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines;
  • forward, redistribute, or otherwise repurpose any or all Qualifying Links for use by any third party;
  • without our prior written authorization, use any widgets on your website that feature any of our trademarks or Licensed Materials, or send traffic to an HMX Site;
  • release HMX Group’s sales circulars, advertisements or other information prior to their authorized release dates; or
  • purchase products or services sold or promoted on an HMX Site through a Qualifying Link for resale or commercial use of any kind.


In addition, you agree to add HMX Group brand terms as a negative to your campaign to avoid broad/phrase matching. This will help eliminate any appearances of HMX Group brands due to your match type.

We have the right in our sole and absolute discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement, and you agree to provide us with unrestricted access to your site for such purpose.

4. Your Use of Electronic Communication
Electronic Communication includes email messages, text messages, and any other form of non-verbal communication occurring without the use of physical mail. You may NOT do any of the following using Electronic Communication unless you first obtain our express written permission. These prohibitions 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. You may not:

  • generate or use Electronic Communication using or containing our trademarks, or any variation or misspelling thereof, or products, or any of the Qualifying Links or URLs provided to you as part of the Program;
  • send any other Electronic Communication that in any way suggests or implies or misleads or is likely to mislead (including without limitation, via the return address, subject heading, header information or message contents) a recipient into believing that HMX Group or any related entity was the sender or sponsor of such Electronic Communication or procured or induced you to send such Electronic Communication;
  • forward, redistribute, or otherwise repurpose any Electronic Communication that we send to our affiliates and/or customers; or
  • generate or send any unsolicited Electronic Communication (spam) under this Agreement.


5. Your Responsibilities

a. Your site and content. You will be solely responsible for the development, operation and maintenance of your site and for all content that appears on your site. For example, you will be solely responsible for:

  • the technical operation of your site and all related equipment;
  • the accuracy, timeliness and appropriateness of content posted on your site (including, among other things, all product-related materials);
  • ensuring that your site complies with all applicable copyright and other laws, including the Children’s Online Privacy and Protection Act of 1998 (“COPPA”);
  • ensuring that your site does not employ the use of any type of software download or technology that intercepts or re-directs traffic or referral fees to or from any other website without the written consent of merchant;
  • ensuring that materials posted on your site do not violate or infringe upon the rights of any third party (including, for example, copyrights, trademarks, privacy, or other personal or proprietary rights);
  • ensuring that content posted on your site is not libelous or otherwise illegal;
  • ensuring that your e-mails and newsletters, if any, fully comply with all applicable laws and regulations, including the CAN-SPAM Act (affiliates must receive prior approval from us before including HMX Group logos or materials within e-mails); and
  • notifying us and the LinkShare Network of any malfunctioning of the Qualifying Links or other problems with your participation in the Program in accordance with the terms of the Offer and this Agreement.


We disclaim all liability for all such matters. Further, you agree to defend, indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys’ fees) relating to the development, operation, maintenance or content of your site.

b. Networks. You may be permitted, in our sole discretion, to enroll in the Program on behalf of a Network. A "Network" is defined as any affiliate that operates one or more websites as sub-affiliates through one (1) Application to the Program. If you enroll on behalf of a Network, you agree, on your own behalf and on behalf of all sub-affiliates, to comply with all the terms and conditions of this Agreement; any additional terms or conditions that we may, in our sole discretion, impose upon your Network; and the following conditions:

  • You must obtain prior written approval from HMX Group before choosing to operate as a Network. Requests to operate as a Network should be made via e-mail to Shannon.Doung@hmxgroup.com.
  • Your initial request to operate as a Network must include a list of planned sub-affiliates that you anticipate inviting to join your Network. Thereafter, you must provide to HMX Group a list of all sub-affiliates in your Network within twenty-four (24) hours of any request from HMX Group.
  • Sub-affiliates may not invite or allow any additional third parties to join the Network, or share any Qualifying Links or Licensed Materials with third parties. Any attempt by a sub-affiliate to transfer, assign, or sublicense any licenses or permissions granted by this Agreement (including, but not limited to, those set forth in Section 11) to a third party will be considered void and a violation of this Agreement.
  • Any violation of this Agreement by any sub-affiliate may result in immediate termination of the entire Network (including you) from the Program.


If you submit an Application on behalf of a Network, you are responsible for any action or inaction by each sub-affiliate in the Network.

6. Order Processing

We will be responsible for all aspects of order processing and fulfillment of orders placed by customers who follow your Qualifying Links to any HMX Site in accordance with applicable legal requirements. We reserve the right to reject orders that do not comply with any reasonable requirements that we periodically may establish. Among other things, we will prepare order forms; process payments, cancellations, and returns; and handle customer service. Through the LinkShare Network, you have the ability to track sales made to customers who purchase products using your Qualifying Links and you can review reports summarizing this sales activity. To permit accurate tracking, reporting, and fee accrual, you must ensure that your Qualifying Links are properly formatted. The form, content, and frequency of the reports are limited to those reports and capabilities available through the LinkShare Network and may vary from time to time in our and/or the LinkShare Network’s reasonable discretion. We are not responsible for any changes in the LinkShare Network’s format, timing, or types of reports available to members of the LinkShare Network and our Affiliates. We will not be responsible for improperly formatted links regardless whether you have made amendments to the code or not. In addition, we are unable to track or provide credit for sales from customers that are referred to us with browsers that do not have their cookies setting enabled.

7. Referral Fees

We will pay you Referral Fees on certain product sales to third parties generated from an HMX Site only. For a product sale to generate a Referral Fee, the customer must:

  • use a browser that has its cookies setting enabled;
  • follow a Qualifying Link (in the format specified by HMX Group) from a site to an HMX Site;
  • purchase the product using our automated ordering system;
  • accept delivery of the product at the shipping destination; and
  • remit full payment to us.


We will pay, to LinkShare for ultimate payment to you, Referral Fees on products that are actually purchased by a customer within three (3) days after the customer has initially entered an HMX Site ("Referral Fee Time") as long as the customer reenters the HMX Site directly during that time (and not through another affiliate link). We will not pay Referral Fees on any products that are purchased on an HMX Site when a customer has re-entered the HMX Site (other than through a Qualifying Link from your website) after the Referral Fee Time, even if the customer previously followed a link from your website to an HMX Site. Referral Fees will not be earned on products where a customer’s purchase of the product derived from search results driven from free or natural search; this includes results containing Qualifying Links displayed in a search engine’s free/non-paid, natural, or organic search results in response to a search query which sends customers directly to an HMX Site without the customer first being sent to an affiliate site and the customer clicking on a link to arrive at an HMX Site. Customer Service invoice adjustments, reorders, gift cards, and gift certificates are not eligible to earn Referral Fees. Products that are entitled to earn Referral Fees under the rules set forth above are hereinafter referred to as "Qualifying Products."

8. Referral Fee Schedule

You will earn referral fees based on the Net Price of Qualifying Products, according to fee schedules to be established by us and communicated to you upon acceptance into the Program. "Net Price" means the sale price listed online on an HMX Site (less any coupon or customer discount) and excludes amounts collected by us for taxes, shipping, handling, rebates, gift-wrapping and similar ancillary services, and amounts due to credit card fraud and bad debt.

9. Referral Fee Payment

We will pay you referral fees on a monthly basis through the LinkShare Network as set forth in this paragraph. Following the end of each calendar month, you will receive a check for the referral fees earned on products that were shipped during the previous month, less any taxes that we are required by law to withhold. If a customer returns a Qualifying Product that generated a referral fee, we will deduct the corresponding referral fee from your next monthly payment; if there is no subsequent payment, we will send you an invoice for the referral fee, which invoice shall be payable by you within thirty (30) days of your receipt of the invoice. All determinations of Qualifying Links and whether a referral fee is payable will be made by the LinkShare Network and will be final and binding.

10. Policies and Pricing

Customers who buy products through the Program will be deemed to be customers of HMX Group, without affecting their status as your customer. Accordingly, all of our rules, policies and operating procedures concerning customer orders, customer service and sales will apply to those customers when using an HMX Site. We may change our policies and operating procedures at any time in our sole discretion. For example, we will determine the prices to be charged for products sold under the Program in accordance with our own pricing policies. Product prices and availability may vary from time to time. You may include current price information in your product descriptions only if such information is provided to you by us, provided that any price information must be accompanied by a statement on your website indicating to the user that in the event of any price difference between your website and an HMX Site, the price listed on the HMX Site will govern. We will use commercially reasonable efforts to present current and accurate information, but we cannot guarantee the availability or price of any particular product.

11. Limited License; Use of Our Logos and Trademarks

We grant you a limited, nonexclusive, nontransferable, revocable right to (i) access any HMX Site through the Qualifying Links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use the Licensed Materials (as defined in Section 2), only as provided to you by us, through the LinkShare Network, or by other means selected by us, solely for the purpose of identifying your website as a Program participant and to assist in generating the sale of HMX Group products.

You acknowledge that this Agreement does not provide you with any intellectual property rights in the Licensed Materials other than the limited rights contained herein. We reserve all of our rights in the Licensed Materials. You may not sublicense, assign or transfer any such licenses for the use of the Licensed Materials, and any attempt at such sublicense, assignment or transfer is void. We may terminate your license to use the Licensed Materials for any reason at any time in our sole discretion.

You shall not make any use of any Licensed Materials for purposes other than generating the sale of HMX Group products from your site without first submitting a sample of such use to us and obtaining our prior written consent, which we may withhold in our sole discretion. Without limiting the foregoing, you may not use any Licensed Materials in direct mail or e-mail without first submitting a sample of such use to us and obtaining our prior written consent.

Your use of the Licensed Materials is also subject to the following guidelines:

  • You may use the Licensed Materials only for purposes expressly authorized by us.
  • You may not alter, modify, or change the Licensed Materials in any way; for example, you may not change the proportion, color, or font of any trademark.
  • You may not display the Licensed Materials in any manner that implies our sponsorship or endorsement of your products, services or site outside of your involvement in the Program.
  • You may not use the Licensed Materials to disparage HMX Group, its products or services, or in a manner that, in our sole judgment, may diminish or otherwise damage the goodwill in our name and the Licensed Materials.
  • Each HMX Group trademark must appear by itself and must be surrounded by sufficient empty space on all sides in order to avoid unintended associations with any other objects (including, without limitation, type, photography, borders and edges).
  • You may not use the Licensed Materials as a feature or design element of any other logo.
  • Your use of any HMX Group name or logo shall be in a manner that is clearly less prominent than that of your products, trademarks, logos and/or site name.
  • You must include appropriate intellectual property notices, including trademark and servicemark notices, on any materials you create that include any HMX Group names or logos.
  • You may not copy any image on any HMX Site except for those links specifically provided to you under this Agreement.


12. Term and Termination

The term of this Agreement will begin upon our acceptance of your Application and will end when terminated by either party. You may terminate this Agreement at any time, with or without cause, by giving us five (5) days’ prior written notice of termination. We may terminate this Agreement immediately at any time, with or without cause, by giving you written notice of termination. Upon termination, all HMX Group related content and links shall be promptly removed from your website. You are only eligible to earn Referral Fees on sales of Qualifying Products occurring during the term, and fees earned through the date of termination will remain payable only if the related orders are not canceled or returned. In the event overpayment is made by us, you agree to promptly remit such excess payment upon notification by us. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.

13. Confidentiality

Except as otherwise provided in this Agreement or with our prior written consent, you agree that all information including, without limitation, the terms of this Agreement, our business and financial information, our customer lists and purchase history, and our pricing and sales information, shall remain strictly confidential and shall not be utilized, directly or indirectly, by you for your 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 you or your affiliates. Notwithstanding the foregoing, you may deliver a copy of any such information (a) pursuant to a subpoena issued by any court or administrative agency, (b) to your accountants, attorneys, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation or legal process, upon written notification to HMX Group.

14. Modification

We may modify any of the terms and conditions contained in this Agreement, at any time and in our sole discretion, by posting a change notice or a new agreement on the applicable HMX Site(s). We will also make commercially reasonable efforts to notify you of such changes prior to or upon implementation. Modifications may include, for example, changes in the scope of available Referral Fees, Referral Fee Schedules, payment procedures, and Program rules or guidelines. IF ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING OUR POSTING OF A CHANGE NOTICE OR NEW AGREEMENT ON THE APPLICABLE HMX SITE(S) AND/OR SENDING YOU THE CHANGE NOTICE WILL CONSTITUTE BINDING ACCEPTANCE OF THE CHANGE.

15. 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 Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total Referral Fees paid or payable to you under this Agreement.

16. Indemnification

You acknowledge that by entering into and performing our obligations under this Agreement, we do not assume and should not be exposed to the business and operational risks associated with your business, or any aspects of the operation or content of your website(s). Accordingly, in addition to any other indemnification obligations contained in this Agreement, you shall protect, defend, hold harmless and indemnify us and our parent or related entities from and against any and all claims, actions, liabilities, losses, costs and expenses, even if such claims are groundless, fraudulent or false (including court costs and reasonable attorneys’ fees) incurred as a result of claims of customers or other third parties against us and our affiliates, licensors, suppliers, officers, directors, employees and agents arising from or connected with any of the content or activities of your website (including without limitation any activities or aspects thereof or commerce conducted thereon) or related business, or your misuse, unauthorized modification or unauthorized use of the services or materials provided by us hereunder.

17. Disclaimers

WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM OR ANY PRODUCTS SOLD THROUGH THE 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 THE HMX SITES WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.

18. Independent Investigation

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND AGREE TO ALL OF 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 program and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.

19. Publicity

You shall not create, publish, distribute, make or permit any public announcement of this Agreement or the relationship contemplated hereunder (including, but not limited to, any press release, client list, screen shot, advertisement or any promotional material) without first submitting such material to us and receiving our written approval, which we may withhold in our sole discretion.

20. Miscellaneous

a. Relationship of Parties. You and we 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. You will not make any statement, whether on your website or otherwise, that reasonably would contradict anything in this Section.

b. Governing Law; Venue. This Agreement will be governed by the laws of the United States and the state of New York, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts having jurisdiction and venue in and for New York County, New York and you irrevocably consent to the jurisdiction of such courts.

c. Notice. Unless otherwise expressly set forth in this Agreement, any notices required or permitted by this Agreement must be delivered to HMX Group via registered mail to:

HMX Group
125 Park Avenue, 7th Floor
New York, NY 10017
Attn: Shannon Doung
Senior Marketing Manager, eCommerce

with a copy to:

Proskauer Rose LLP
1001 Pennsylvania Avenue, NW
Suite 400 South
Washington, DC 20004-2533
Attn: Brendon Tavelli, Esq.

Any notices required or permitted by this Agreement or communications in connection with the Program will be sent to you by HMX Group via e-mail at the address you provided in your Application. As a member of the Program, you agree to receive any e-mail communication that we determine is necessary in order for you to continue as a member of the Program, regardless of your choice to opt-out from certain communication.

d. Severability; Interpretation. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other provision may be invalid or unenforceable in whole or in part. In the event of an inconsistency between the terms of this Agreement and your agreement(s) with LinkShare, the terms of this Agreement shall govern.

e. Assignment. 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.

f. Waiver. Our failure or agreement not to enforce your strict performance of any provision of this Agreement in a given instance will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement.

g. Equitable Relief. The parties agree that any breach of either of the party’s obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links, and/or user data may result in irreparable injury for which there may be no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a party’s obligations regarding trademarks, service marks, trade names, confidentiality, links or the removal of links, and/or user data, the aggrieved party will be entitled to seek equitable relief in addition to its other available legal remedies in a court of competent jurisdiction.

h. Force Majeure. You acknowledge that HMX Group’s and the LinkShare Network’s servers, equipment, and services (e.g., tracking and reporting) may be subject to temporary modifications or shutdowns due to causes beyond HMX Group’s and the LinkShare Network’s reasonable control. Such temporary service interruptions will not constitute a material breach of this Agreement.

i. Survival. Section 12 (Term and Termination), 13 (Confidentiality), 15 (Limitation of Liability), 16 (Indemnification) and 20 (Miscellaneous), including all subsections thereof, shall survive any termination of this Agreement.
 

close