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Hill's to Home Service Agreement
Hill’s to Home Service Agreement
Last Updated September 30, 2021
THIS HILL’S TO HOME SERVICE AGREEMENT (THE "AGREEMENT") CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SERVICES AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT AND HILL’S. BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
You agree to receive communication from Hill’s about products, offers and programs, until you notify Hill’s otherwise, including via text message, facsimile, telephone or other similar means.
As used in this Agreement, "we," "us," and "Hill’s" means Hill’s Pet Nutrition Sales, Inc. and any of its applicable Affiliates, and "you" means the applicant (if registering for or using a Service as an individual), or the business employing the applicant (if registering for or using a Service as a business) and any of its Affiliates. Capitalized terms have the meanings given to them in this Agreement. If there is a conflict among terms in this Agreement, Program Policies, and such other terms and conditions referenced herein, the order of priority for resolving such conflict shall be: (i) Program Policies, (ii) this Agreement, (iii) Hill’s Pet Nutrition Sales, Inc. Veterinary Practice General Conditions of Sale, and (iv) the Hill’s Pet Nutrition Sales, Inc. Standard Commercial Terms.
Hill’s Role. Hill’s, through the Hill’s to Home Site, provides the Services to allow you to sell Hill’s products to third party buyers (“Buyers”) on a one-time or subscription basis. Except as described in Section 2.4, (i) all transactions with Buyers are between you and the Buyer, and you will be the seller of record and (ii) Hill’s is not a party to any transactions although Hill’s will provide the Services in connection with the transactions as set forth herein. As part of the Services, Hill’s will provide a platform to accept orders from Buyers, process payments on your behalf and fulfill orders.
To begin the enrollment process, you must complete the registration process. Use of the Services is limited to parties that can lawfully enter into and form contracts under applicable Law. As part of the application, you must: (i) provide us with your (or your business's) Hill’s ship to account number, zip code, email address, first and last name, qualification, phone number and any other information reasonably requested; and (ii) establish an account with the Payment Processor for the purpose of receiving payments from Buyers and making payment to Hill’s. We may at any time cease providing any or all of the Services at our sole discretion and without notice.
2.1 Product Information. You will ensure that Your Materials and your offer and subsequent sale of any of Your Products utilizing the Services comply with all applicable Laws. You will set the selling price of Your Products and may modify the selling price of Your Products at your sole discretion.
2.2 Order Processing. We will receive orders from Buyers for Your Products via the Hill’s to Home Site. If the order received from Buyer states that the order is recurring, Hill’s will fulfill the recurring orders at the frequency and until such time as directed by the Buyer unless the Buyer subsequently cancels future orders.
2.3 Order Fulfillment. Once an order is received from a Buyer or a recurring order is scheduled to be fulfilled, Hill’s will fulfill the order by: (i) packaging the Hill’s product for shipment, (ii) transferring title of the Hill’s product to you, (iii) instructing the Payment Processor to charge the Purchase Price for Your Products related to Your Transactions to the Buyer’s payment method on your behalf, (iv) instructing the Payment Processor to credit your Payment Processor Account with the Net Sales Proceeds (as fully described in Section 5) and (vi) shipping Your Product to the Buyer. When Your Product is shipped to the Buyer, title will pass to the Buyer.
You will: (a) only cancel Your Transactions as permitted pursuant to the terms and conditions appearing on the Hill’s to Home Site at the time of the applicable order or as may be required under this Agreement or applicable Law; (b) ensure that you are the seller of each of Your Products; and (c) identify yourself as the seller of each of Your Products on all correspondence or other information included or provided in connection with Your Products and that Hill’s will process returns on your behalf.
All Hill’s products sold to you are pursuant to the Hill’s Pet Nutrition Sales, Inc. Veterinary Practice General Conditions of Sale, and the Hill’s Pet Nutrition Sales, Inc. Standard Commercial Terms, incorporated herein by reference, to the extent those conditions and terms are not superseded by this Agreement.
2.4 Change in Seller. If an order is received from a Person or a recurring order is scheduled to be fulfilled and Hill’s is not able to transfer title of the Hill’s product to you, then Hill’s will attempt to fulfill the order to the Person by directly selling the Hill’s product to the Person. You will: (i) not be the seller of the Hill’s product to the person; (ii) not receive Net Sales Proceeds for this transaction; and (iii) not be charged Service Fees, Hill’s List Price for the product, shipping fees, or sales and use taxes.
2.5 Fraud. You will bear the risk of credit card fraud (i.e., a fraudulent purchase arising from the theft and unauthorized use of a third party's credit card information) occurring in connection with Your Transactions and all other risk of fraud or loss. We may in our sole discretion withhold for investigation, refuse to process, restrict shipping destinations for, stop, and/or cancel any of Your Transactions. You will refund any Person (in accordance with Section 3) that has been charged for an order that we stop or cancel.
3. Cancellations, Returns, and Refunds. The Hill’s to Home Refund Policies will apply to Your Products. Hill’s will promptly accept, calculate, and process cancellations, returns, refunds, and adjustments related to Your Products in accordance with this Agreement and the Hill’s to Home Refund Policies.
You will pay us: (a) the applicable Service Fees; and (b) any other applicable fees described in this Agreement (including the Fee Schedule and any applicable Program Policies).
5. Remittance of Sales Proceeds & Refunds.
Except as otherwise stated in this Agreement, we will instruct the Payment Processor to remit to your Payment Processor Account on a weekly (or at our option, more frequent) basis. For each remittance, your remittance amount is equal to any Sales Proceeds received by the Payment Processor or its Affiliates but not previously remitted to you (which you will accept as payment in full for Your Transactions), plus discounts to Buyers funded by Hill’s (if any, such as subscription discounts), less: (a) the Service Fees; (b) any other applicable fees described in this Agreement (including the Fee Schedule and any applicable Program Policies); (c) any amounts we require you to maintain in your account balance pursuant to this Agreement (including payments withheld pursuant to Section 9 and Section 2.5, and applicable Program Policies); (d) Hill’s List Price (subject to applicable taxes, promotions and discounts) for each of Your Products sold; (e) shipping fees (if any); and (f) any sales and use taxes that Hill’s automatically calculates, collects and remits to a tax authority (the “Net Sales Proceeds”).
We may establish a reserve on your Payment Processor Account based on our assessment of risks to Hill’s or third parties posed by your actions or performance, and we may modify the amount of the reserve from time to time at our sole discretion.
If money is refunded to a Person in connection with one of Your Transactions, and the refund is processed through us or our Affiliate, we will refund to you the amount of the Service Fee paid by you to us attributable to the part of the MSRP of Your Product refunded, less the Refund Administration Fee (if applicable) for each of Your Products. We will instruct the Payment Processor to remit any amounts to be refunded by us pursuant to this subsection.
6. Control of the Hill’s to Home Site.
We have the right in our sole discretion to determine the content, appearance, design, functionality, and all other aspects of the Hill’s to Home Site, including by redesigning, modifying, removing, or restricting access to any of them, and by suspending, prohibiting, or removing any listing.
7. Customer Service
7.1 We will be responsible for and have sole discretion regarding all customer service issues relating to packaging, handling and shipment, and returns, refunds, and adjustments related to Hill’s to Home Fulfillment Units. We will have the right to determine whether a Buyer will receive a refund, adjustment or replacement for any Hill’s to Home Fulfillment Unit and to require you to reimburse us where we determine you have responsibility in accordance with the Agreement, including the Program Policies.
7.2 In situations relating to Hill’s to Home Fulfillment Units where the wrong Unit was delivered or the Unit was damaged or lost or is missing, unless we determine that the basis for such mis-shipment, damaged, lost or missing Unit is caused by you or any of your employees, agents, or contractors, we will, as your sole and exclusive remedy and at our option: (i) ship a replacement Unit to the Buyer at no cost to you, or (ii) process a refund to the Buyer and reimburse you for all amounts which had previously been debited to your Payment Processor Account with respect to such Unit (including the Service Fee).
7.3 If we provide a replacement Unit or refund as described in Section 7.2 to a Buyer and that Buyer returns the original Unit to us, we will be entitled to dispose of the original Unit if we determine, in our sole discretion, that it is an Unsuitable Unit.
8. Payment Processing
8.2 Your use of the Services requires you to create an account with the Payment Processor. If you cancel, close or disconnect the Payment Processor Account, Hill’s will not be able to process transactions through the Hill’s to Home Site for you and your Services will be suspended. Your relationship with the Payment Processor is governed by the Payment Processor’s terms and policies, including the fees charged to you by the Payment Processor to process payments. The Payment Processor will charge fees related to your use of Payment Processor to your Payment Processor Account. If for any reason, the Payment Processor is unable or does not charge Payment Processor Fees to your Payment Processor Account, and said fees are charged to Hill’s, Hill’s shall invoice you for such fees and you agree to pay said fees on your current Hill’s payment terms. You agree that Hill’s may, at any time and in its sole discretion, and without any notice to you change Payment Processors without any liability to you.
8.3 In accordance with the terms of this Agreement, you authorize Hill’s to instruct the Payment Processor to charge Buyer’s payment methods, credit your Payment Processor Account, debit your Payment Processor Account, communicate information about transactions and refunds, make Payment Processor Account balance adjustments, handle disputes and chargebacks, process refunds and adjustments for your Transactions, pay Hill’s and its Affiliates amounts you owe in accordance with this Agreement or other agreements you may have with Hill’s Affiliates and utilize other Payment Processor Account features. Hill’s will use data about your Payment Processor Account and the activity and transactions within said account, to fulfill its obligations to you under this Agreement. You authorize Hill’s to share transaction information and Payment Processor Account data with the Payment Processor.
Subject to Section 9 of this Agreement, Hill’s will instruct the Payment Processor to remit funds to you in accordance with Section 5 of this Agreement. Hill’s obligation to instruct remittance of funds is limited to funds that have actually been received less amounts owed to Hill’s, and any sales and use taxes that Hill’s automatically calculates, collects and remits to a tax authority, subject to chargeback or reversal or withheld for anticipated claims in accordance with this Agreement. To the extent applicable fees and other amounts under this Agreement exceed the Sales Proceeds Hill’s shall invoice you for such fees and other amounts owed.
8.5 Your Funds
Your Net Sales Proceeds will be credited to your account with the Payment Processor (a "Payment Processor Account").
9. Service Fee Payments; Receipt of Sales Proceeds.
Fee details are described in the applicable Fee Schedule. You are responsible for all of your expenses in connection with this Agreement. You agree to update all account information promptly upon any change. You will use only a name you are authorized to use in connection with the Services and will update all of the information you provide to us in connection with the Services as necessary to ensure that it at all times remains accurate, complete, and valid. We may at any time require you to provide any financial, business or personal information we request to verify your identity and you authorize us (and will provide us documentation evidencing your authorization upon our request) to verify your information (including any updated information) and to obtain business or consumer credit reports about you from time to time. If we determine that your actions or performance may result in excessive returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Hill’s or third parties, then we may in our sole discretion instruct the Payment Processor to withhold any payments to you for as long as we determine any related risks to Hill’s or third parties persist. For any amounts that we determine you owe us, we may (a) offset any amounts that are payable by you to us (in reimbursement or otherwise) against any payments we may make to you or amounts we may owe you; (b) invoice you for amounts due to us, in which case you will pay the invoiced amounts upon receipt; (c) reverse any credits to your bank account; or (d) collect payment or reimbursement from you by any other lawful means. If we determine that your account has been used to engage in deceptive, fraudulent, or illegal activity, or to repeatedly violate our Program Policies, then we may in our sole discretion permanently withhold any payments to you. Except as provided otherwise, all amounts contemplated in this Agreement will be expressed and displayed in United States Dollars, and all payments contemplated by this Agreement will be made in United States Dollars.
In addition, we may require that you pay other amounts to secure the performance of your obligations under this Agreement or to mitigate the risk of returns, chargebacks, claims, disputes, violations of our terms or policies, or other risks to Hill’s or third parties. These amounts may be refundable or nonrefundable in the manner we determine, and failure to comply with terms of this Agreement, including any applicable Program Policies, may result in their forfeiture.
As a security measure, we may, but are not required to, impose transaction limits on some or all Buyers and you relating to the value of any transaction or disbursement, the cumulative value of all transactions or disbursements during a period of time, or the number of transactions per day or other period of time. We will not be liable to you: (i) if we do not proceed with a transaction or disbursement that would exceed any limit established by us for a security reason, or (ii) if we permit a Buyer to withdraw from a transaction because a Service is unavailable following the commencement of a transaction.
10. Term and Termination.
The term of this Agreement will start on the date of your completed registration for or use of the Service, whichever occurs first, and continue until terminated by us or you as provided in this Agreement (the "Term"). We may terminate or suspend this Agreement for any reason at any time by notice to you. You may terminate this Agreement for any reason at any time by notice to us. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that the rights and obligations of the parties with respect to Your Transactions occurring during the Term and Sections 9-14, 16, and 19-21 will survive termination.
You represent and warrant to us that: (a) if you are a business, you are duly organized, validly existing and in good standing under the Laws of the government subdivision in which your business is registered; (b) you have all requisite right, power, and authority to enter into this Agreement, perform your obligations, and grant the rights, licenses, and authorizations in this Agreement; (c) any information provided or made available by you or your Affiliates to Hill’s or its Affiliates is at all times accurate and complete; (d) you and your financial institution(s) are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties or owned or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the US Government (e.g., the US Department of Treasury’s Specially Designated Nationals list and Foreign Sanctions Evaders list and the US Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority; (e) you and all of your subcontractors, agents, and suppliers will comply with all applicable Laws, rules, regulations and licenses issued by any supra-national, governmental or other authority in relation to the subject matter of this Agreement including, without limitation, the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act 2010, and any other applicable anti-corruption laws, rules or conventions in your performance of your obligations and exercise of your rights under this Agreement; (f) you and your Affiliates will not participate or knowingly allow the use of the Hill’s to Home Site or the Services to fulfill online orders from another online retailer; (g) if you utilize the Hill’s to Home Site or Services to search for or lookup a Person, the Person is a client of yours and you have obtained their consent to perform such search or lookup; (h) you have provided the necessary notice or received the necessary consent to input any information into the Hill’s to Home site; and (i)you are currently in compliance with Hill’s Anti-Bribery Policy and will maintain compliance until this Agreement is terminated.
You release us and agree to indemnify, defend, and hold harmless us, our Affiliates, and our and their respective officers, directors, employees, representatives, and agents against any claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys' fees) (each, a "Claim") arising from or related to: (a) your actual or alleged breach of any obligations in this Agreement; (b) any of your sales channels other than the Hill’s to Home Site, the offer and sale of Your Products, Your Materials, any actual or alleged infringement of any Intellectual Property Rights by any of the foregoing, and any personal injury, death, or property damage related thereto; (c) Your Personnel (including any act or omission of Your Personnel or any Claim brought or directed by Your Personnel); or (d) Your Taxes. You will use counsel reasonably satisfactory to us to defend each indemnified Claim. If at any time we reasonably determine that any indemnified Claim might adversely affect us, we may take control of the defense at our expense. You may not consent to the entry of any judgment or enter into any settlement of a Claim without our prior written consent, which may not be unreasonably withheld.
13. Disclaimer & General Release.
a. THE HILL’S TO HOME SITE AND THE SERVICES, INCLUDING ALL CONTENT, SOFTWARE, FUNCTIONS, MATERIALS, AND INFORMATION MADE AVAILABLE ON OR PROVIDED IN CONNECTION WITH THE SERVICES, ARE PROVIDED "AS-IS." AS A USER OF THE SERVICES, YOU USE THE HILL’S TO HOME SITE AND THE SERVICES AT YOUR OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WE AND OUR AFFILIATES DISCLAIM: (i) ANY REPRESENTATIONS OR WARRANTIES REGARDING THIS AGREEMENT, THE SERVICES OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; (ii) IMPLIED WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE; AND (iii) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM OUR NEGLIGENCE. WE DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE HILL’S TO HOME SITE AND THE SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE, TIMELY, SECURE, UNINTERRUPTED, OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING BUT NOT LIMITED TO SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION, OR SETTLEMENT OF ANY TRANSACTIONS.
b. BECAUSE HILL’S IS NOT INVOLVED IN TRANSACTIONS BETWEEN BUYERS AND YOU OR OTHER PARTICIPANT DEALINGS, IF A DISPUTE ARISES BETWEEN ONE OR MORE PARTICIPANTS, EACH PARTICIPANT RELEASES HILL’S (AND ITS AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
c. WE DISCLAIM ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE OR OTHERWISE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, OR SHIPMENT OF YOUR PRODUCTS BY US OR OUR AFFILIATES OR ANY OF OUR OR THEIR CONTRACTORS OR AGENTS.
14. Limitation of Liability.
WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY, OR OTHER THEORY), OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY, OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF HILL’S HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE COSTS OR DAMAGES. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT EXCEED AT ANY TIME THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO HILL’S IN CONNECTION WITH THIS AGREEMENT.
15. Tax Matters.
As between the parties, you will be responsible for the collection, reporting, and payment of any and all of Your Taxes, except to the extent that (i) Hill’s automatically calculates, collects, or remits taxes on your behalf according to applicable Law; or (ii) Hill’s receives sales and use taxes or other transaction-based charges on your behalf in connection with tax calculation services made available by Hill’s and used by you. You understand and acknowledge that the physical presence of Your Products at warehouses may create tax nexus for you in any state or other localities in which Your Products are held, and you will be solely responsible for any taxes owed as a result of such storage. All fees and payments payable by you to Hill’s under this Agreement are exclusive of any applicable taxes, deductions or withholding, and you will be responsible for paying Hill’s any of Your Taxes imposed on such fees and any deduction or withholding required on any payment.
During the course of your use of the Services, you may receive information relating to us or to the Services, including but not limited to Hill’s Transaction Information, that is not known to the general public ("Confidential Information"). You agree that: (a) all Confidential Information will remain Hill's exclusive property; (b) you will use Confidential Information only as is reasonably necessary for your participation in the Services; (c) except as expressly permitted by this Agreement, you will not disclose Confidential Information to any other Person; (d) you will take all reasonable measures to protect the Confidential Information against any access, use or disclosure that is not expressly permitted in this Agreement and such measures will be at least as protective as those that you use to protect your own Confidential Information; and (e) you will promptly notify us in writing in the event of any loss or unauthorized access to, acquisition of, or disclosure of Hill’s Transaction Information or other Confidential Information. You may not use our name, trademarks, or logo, in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between us in any way.
17. Force Majeure.
We will not be liable for any delay or failure to perform any of our obligations under this Agreement by reasons, events or other matters beyond our reasonable control.
18. 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 us. You will have no authority to make or accept any offers or representations on our behalf. This Agreement will not create an exclusive relationship between you and us. Nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any Person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions in this Agreement are intended to be and are for the sole and exclusive benefit of Hill’s and you. You will not make any statement that would contradict anything in this section.
19. Use of Hill’s Transaction Information.
20. Suggestions and Other Information.
If you or any of your Affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to the Hill’s to Home Site or Service (including any related Technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including but not limited to user contact details, IP addresses and traffic information, usage history, and posted content. If we make suggestions on using the Services, you are responsible for any actions you take based on our suggestions.
We may amend any of the terms and conditions contained in this Agreement at any time and at our sole discretion. Any changes will be effective upon the posting of such changes on the Hill’s to Home Site, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. Changes to Program Policies may be made without notice to you. You should refer regularly to the Hill’s to Home Site to review the current Agreement (including Program Policies). YOUR CONTINUED USE OF THE SERVICE AFTER HILL'S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS.
22. Password Security.
Any password we provide to you may be used only during the Term to access Hill’s to Home Administration for its intended purpose. You are solely responsible for maintaining the security of your password. You may not disclose your password to any third party (other than third parties authorized by you to use your account in accordance with this Agreement) and are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password.
You will not directly or indirectly export, re-export, transmit, or cause to be exported, re-exported or transmitted, software or technology to any country, individual, corporation, organization, or entity to which such export, re-export, or transmission is restricted or prohibited, including any country, individual, corporation, organization, or entity under sanctions or embargoes administered by the United Nations, US Departments of State, Treasury or Commerce, the European Union, or any other applicable government authority.
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Kansas, without giving effect to any choice of law or conflicts of law rules or provisions. Any action to enforce or interpret this Agreement shall be brought in the state courts located in Shawnee County, Kansas or federal court in Kansas City, Kansas. It is specifically agreed that this Agreement shall not be covered by nor construed in accordance with the terms of the United Nations Convention on Contracts for the International Sale of Goods. Any controversy or claim between Hill’s or its Affiliates and You or your Affiliates or arising out of this Agreement or any use of the Services shall be determined by one disinterested arbitrator in binding arbitration pursuant to the Commercial Arbitration Rules and the Supplementary Procedures for Online Arbitration of the American Arbitration Association (the “AAA”). The arbitrator shall be experienced in agreements for consumer packaged goods, either as an attorney or professional. If the parties fail to appoint an arbitrator within forty-five (45) days of the institution of the arbitration, the AAA shall select the arbitrator promptly thereafter. Any requests for accelerated, emergency or preliminary relief shall be submitted pursuant to the AAA’s Optional Rules for Emergency Measures of Protection. If any such requests are made before an arbitration panel is empaneled, then the AAA shall appoint one disinterested arbitrator as an arbitration panel to immediately hear and decide such request. The arbitration panel shall have the right to grant interim awards. Testimony shall be permitted by telephone, video conference and other forms of real-time telecommunications. If the arbitrator requires in-person hearings, the hearings shall be held in Topeka, Kansas. The arbitral award will be final and binding, and may be entered and enforced in any court of competent jurisdiction.
BY ENTERING INTO THIS AGREEMENT, YOU AND HILL’S ACKNOWLEDGE AND AGREE TO WAIVE CERTAIN RIGHTS TO LITIGATE DISPUTES IN COURT, TO RECEIVE A JURY TRIAL OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY. YOU AND HILL’S BOTH AGREE THAT ANY ARBITRATION WILL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT A CONSOLIDATED, CLASS-WIDE OR REPRESENTATIVE BASIS AND THE ARBITRATOR SHALL HAVE NO AUTHORITY TO PROCEED WITH AN ARBITRATION ON A CLASS OR REPRESENTATIVE BASIS. THE ARBITRATOR MAY AWARD INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM. IF FOR ANY REASON THE ARBITRATION CLAUSE SET FORTH IN THIS AGREEMENT IS DEEMED INAPPLICABLE OR INVALID, OR TO THE EXTENT THE ARBITRATION CLAUSE ALLOWS FOR LITIGATION OF DISPUTES IN COURT, YOU AND HILL’S BOTH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY RIGHT TO PURSUE OR TO PARTICIPATE AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLAIM ON A CLASS OR CONSOLIDATED BASIS OR IN A REPRESENTATIVE CAPACITY.
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, and be enforceable against the parties and their respective successors and assigns. We may perform any of our obligations or exercise any of our rights under this Agreement through one or more of our Affiliates. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to enforce such provision or any other provision of this Agreement subsequently.
We have the right in our sole discretion to determine the content, appearance, design, functionality, and all other aspects of the Services, including by redesigning, modifying, removing, or restricting access to any of them.
Because Hill’s is not your agent or the Buyer’s agent for any purpose, Hill’s will not act as either party's agent in connection with resolving any disputes between participants related to or arising out of any transaction.
We will send all notices and other communications regarding this Agreement to you at the e-mail addresses you designated for notifications and updates in your program application or within Hill’s to Home Administration or by any other means then specified by Hill’s. We may also communicate with you electronically and in other media, and you consent to such communications regardless of any "E-mail Preferences" (or similar preferences or requests) you may have indicated on the Hill’s to Home Site or by any other means. You may change your e-mail addresses and certain other information in Hill’s to Home Administration. You will ensure that all of your information is up to date and accurate at all times. You must send all notices and other communications relating to Hill’s to: Hill’s Pet Nutrition Sales, Inc., Customer Service Center, 400 SW 8th Ave, Topeka, KS 66603.
This Agreement incorporates and you accept the applicable Program Policies, Hill’s Pet Nutrition Sales, Inc. Veterinary Practice General Conditions of Sale, and the Hill’s Pet Nutrition Sales, Inc. Standard Commercial Terms which Hill’s may modify from time to time. If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions. This Agreement represents the entire agreement between the parties with respect to the Services and related subject matter and supersedes any previous or contemporaneous oral or written agreements and understandings.
As used in this Agreement, the following terms have the following meanings:
"Affiliate" means, with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with that entity.
"Agreement" means this Hill’s to Home Service Agreement, any successor thereof or any other similar agreement (as determined by Hill’s) between you and us that permits you to offer Your Products via the Hill’s to Home Site.
"Content" means copyrightable works under applicable Law and content protected by database rights under applicable Law.
"Fee Schedule" means the schedule of fees provided to you by Hill’s, and any successor thereof.
"Hill’s List Price" means the list price as published by Hill’s on its price list.
"Hill’s to Home Administration" means the online portal and tools made available by Hill’s to you, for your use in administering the Services on the Hill’s to Home Site.
"Hill’s to Home Fulfillment Units" means Units fulfilled by Hill’s or its Affiliates that are sold through the Hill’s to Home Site. For avoidance of doubt, the term "Hill’s to Home Fulfillment Units" and the defined term "Hill’s to Home Fulfilled Products" both refer to the same items.
"Hill’s to Home Refund Policies" means the return and refund policies published on the Hill’s to Home Site and applicable to Your Products offered via the Hill’s to Home Site.
"Hill’s to Home Site" means the website, the primary home page of which is identified by the url www.hillstohome.com, and any successor or replacement of such website.
"Hill’s Transaction Information" means, collectively, order information, shipping information, and any other data or information acquired by Hill’s, its Affiliates, or otherwise as a result of this Agreement, the transactions contemplated by this Agreement or the parties' performance under this Agreement.
"Intellectual Property Right" means any patent, copyright, Trademark, domain name, moral right, trade secret right, or any other intellectual property right arising under any Laws and all ancillary and related rights, including all rights of registration and renewal and causes of action for violation, misappropriation or infringement of any of the foregoing.
"Law" means any law, ordinance, rule, regulation, order, license, permit, judgment, decision, or other requirement, now or in the future in effect, of any governmental authority (e.g., on a federal, state, or local level, as applicable) of competent jurisdiction.
"MSRP" means manufacturer’s suggested retail price.
"Person" means any individual, corporation, partnership, limited liability company, governmental authority, association, joint venture, division, or other cognizable entity, whether or not having distinct legal existence.
"Program Policies" means all terms, conditions, policies, guidelines, rules, and other information on the Hill’s to Home Site, including those shown on the "Policies and Agreements" section of Hill’s to Home Administration or elsewhere in the "Help" section of Hill’s to Home Administration.
"Purchase Price" means the total amount payable or paid for Your Product (including taxes and shipping and handling charges).
“Refund Administration Fee” means the applicable fee for Hill’s administration of refunds relating to Your Transactions as set forth on the Fee Schedule.
"Sales Proceeds" means the gross proceeds from any of Your Transactions, including all shipping and handling, and other charges, and including taxes.
"Service" means providing access to the Hill’s to Home Site, fulfilling orders of Your Products through the Hill’s to Home Site and instructing the Payment Process to process payments on your behalf.
"Service Fee" means the applicable fee based on the MSRP of Your Products from Your Transaction through the Hill’s to Home Site specified on the Fee Schedule at the time of Your Transaction.
"Technology" means any: (a) ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries protected or protectable under the Laws of any jurisdiction; (b) interfaces, protocols, glossaries, libraries, structured XML formats, specifications, grammars, data formats, or other similar materials; and (c) software, hardware, code, technology, or other functional item.
"Trademark" means any trademark, service mark, trade dress (including any proprietary "look and feel"), trade name, other proprietary logo or insignia, or any other source or business identifier, protected or protectable under any Laws.
"Unit" means a unit of Your Product.
"Unsuitable Unit" means a Unit: (a) that is defective, damaged, unfit for a particular purpose, or lacking required label(s); (b) that Hill’s determines is unsellable or unfulfillable; or (c) that Hill’s determines is otherwise unsuitable.
"Your Materials" means all Technology, Your Trademarks, Content, Your Product information, data, materials, and other items or information provided or made available by you or your Affiliates to Hill’s or its Affiliates.
"Your Personnel" means any third party warranting, administering or otherwise involved in the offer, sale, performance, or fulfillment of Your Products, including any of your employees, representatives, agents, contractors, or subcontractors.
"Your Product" means any Hill’s product that you take title to pursuant to this Agreement.
"Your Taxes" means any and all sales, goods and services, use, excise, premium, import, export, value added, consumption, and other taxes, regulatory fees, levies (specifically including environmental levies), or charges and duties assessed, incurred, or required to be collected or paid for any reason (a) in connection with any advertisement, offer or sale of products or services by you on or through or in connection with the Services; (b) in connection with any products or services provided for which Your Products are, directly or indirectly, involved as a form of payment or exchange; or (c) otherwise in connection with any action, inaction, or omission of you or your Affiliates, or any Persons providing products or services, or your or their respective employees, agents, contractors, or representatives, for which Your Products are, directly or indirectly, involved as a form of payment or exchange. This defined term also means any of the types of taxes, duties, levies, or fees mentioned above that are imposed on or collectible by Hill’s or any of its Affiliates in connection with or as a result of fulfillment services including the storage of inventory or packaging of Your Products and other materials owned by you and stored by Hill’s, shipping, or other actions by Hill’s in relation to Your Products pursuant to this Agreement.
"Your Trademarks" means Trademarks of yours that you provide to us: (a) in non-text form for branding purposes; and (b) separate from (and not embedded or otherwise incorporated in) any product specific information or materials.
"Your Transaction" means any sale of Your Product(s) to Buyers through the Hill’s to Home Site.
Service Fee: 13% of MSRP
Refund Administration Fee: $0.00