Evelyn & Bobbie

Evelyn & Bobbie

Program Terms

EVELYN & BOBBIE AFFILATE PROGRAM AGREEMENT

On this _____ day of _____, 2024, Evelyn & Bobbie, LLC, a Delaware limited liability company (“E&B”), and ________________________________ (“Participant”), on behalf of Participant and Participant’s heirs and successors, do hereby enter into this Evelyn & Bobbie Affiliate Program Agreement (the “Agreement”). E&B and Participant shall cooperate in good faith to carry out this Agreement as defined herein.

Now, therefore, the parties hereby agree as follows:

1. THE PROGRAM. Participant agrees to use one or more E&B-provided Affiliate links (the “Link(s)”) to promote the sale of E&B’s products (the “Product(s)”), as directed by E&B via E&B’s affiliate program (the “Program”). The Links may be used by Participant on all of Participant’s personal websites, blogs, and all social media channels (the “Participant Channels”). Participant will prominently display the Links in the manner provided by E&B (and without modification, alteration or amendment) on the Participant Channels so as to draw attention to the Links and so as to drive end users to click through the Link to E&B’s ecommerce website located at the following link https://evelynbobbie.com (or any successor ecommerce site designated by E&B) (the “E&B Site”).

2. TRADEMARK USAGE. Participant acknowledges and agrees that: (a) Participant shall use E&B’s trademarks and branding (the “E&B Marks”) in the same quality and manner in which the E&B Marks are used by E&B; (b) Participant shall not alter, modify, cut apart or otherwise disassemble the E&B Marks in any way except as otherwise authorized by E&B in writing; (c) Participant shall use the E&B Marks at all times in a manner that shall not adversely affect the goodwill and reputation of E&B; and (d) all goodwill associated with the use of the E&B Marks by Participant hereunder shall inure solely to the benefit of E&B. E&B reserves the right to monitor and approve all use by Participant of the E&B Marks hereunder.

3. RESTRICTIONS AND LIMITATIONS. Participant agrees to the following restrictions and limitations:
a. Participant will not use the Links in any manner that is libelous or otherwise defamatory in nature.
b. Participant will not make any representations, warranties or guarantees on behalf of E&B regarding the Products.
c. Participant will not infringe or otherwise violate any right of any third party, including any copyright, trademark, patent, trade secret or other intellectual property right, or any right of publicity or privacy.
d. Participant will not do anything to materially damage or depreciate the goodwill associated with E&B and/or the Products, including without limitation, any use of the Links or any display or promotion of the Products in connection with, or in any manner that consists of, in whole or in part, gore or extreme violence, hate speech (i.e., demeaning of race, gender, age, religious or sexual orientation, etc.), sexually explicit or pornographic content or materials, or fraudulent, false, misleading or deceptive content or materials.
e. Participant will not commit any action or engage in any conduct that brings E&B into public disrepute, scandal or ridicule, or that reflects in a materially adverse manner on the integrity or reputation of E&B, including, without limitation, illegal, dishonest or fraudulent conduct, as determined in the reasonable discretion of E&B.
f. Participant is familiar with and understands the U.S. Federal Trade Commission’s (“FTC”) guidance regarding product endorsements and testimonials, including without limitation, the obligation on the part of an endorser to disclose material connections between the endorser and the manufacturer or seller of the product being endorsed (the “FTC Guidelines”). Participant represents and warrants that in his or her participation in the Program and use of the Links, Participant will comply with the FTC Guidelines and all applicable national, state, regional and local laws and regulations, including without limitation, Section 5 of the federal FTC Act (“Applicable Laws”), and Participant will not take or fail to take any act or otherwise engage in any conduct that is or is likely to cause E&B to be in violation of Applicable Laws.
g. Employees of E&B may not participate in the Program. If Participant becomes an employee of E&B, then this Agreement will automatically terminate, and Participant will be removed from the Program. Participant will only be entitled to receive commissions that were earned prior to the commencement date of Participant’s employment. Upon termination of Participant’s employment with E&B, Participant may apply to re-enroll in the Program.
h. Participant may not purchase Products during sessions initiated through a Link for its own use, resale, or commercial use of any kind. This includes orders for customers or on behalf of customers, or orders for products to be used by Participant or Participant’s friends or family. Such purchases may result, in E&B’s sole discretion, in the withholding of commissions or the termination of this Agreement.
i. Participant is solely responsible for the development, operation and maintenance of the Participant Channels and for all materials that appear on the Participant Channels, including, but not limited to: (i) the Links; (ii) the accuracy and appropriateness of materials posted on the Participant Channels (including but not limited to all Product-related materials); and (iii) ensuring that materials posted on the Participant Channels do not violate any provision of this Agreement. E&B disclaims all liability for the matters stated in this subsection (i).
j. Participant may not utilize in connection with the Participant Channels or Participant’s participation in the Program: (i) any framing technology that frames the E&B Site; (ii) any software that gathers information through the customer's Internet connection without his or her knowledge; (iii) any software or action that violates any Applicable Laws, including without limitation, laws which prohibit a person or company from: (1) installing spyware on another person's computer; (2) causing spyware to be installed on another person's computer; or (3) using a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising or other content on an Internet website in a way that interferes with a user's ability to view the Internet website; (iv) browser-embedded contextual targeting applications or other applications which serve "Advertising" on E&B’s competitors’ websites or on any other websites other than Participant’s website; "Advertising" means: (a) pop-up ads and pop-unders; (b) in-browser ads; and (c) highlighting of website content and redirecting to websites with similar content, regardless of whether any such Advertising is served directly by Participant or is provided by or purchased from a third party; or (v) any "opt-out downloads"; an "opt-out download" is any software, program, script, tool or element that would automatically download to a user's computer or that would become operative when the user accesses the Internet unless the user takes affirmative action to prevent the download.
k. Participant may not: (i) use the Evelyn & Bobbie name, or any variation thereof, in any manner not expressly authorized by this Agreement; in particular, Participant may not post E&B sales, promotions or coupons on the Participant Channels without E&B’s prior written consent; (ii) purchase domain names that have variations or misspellings of E&B’s trademarks which are solely intended to direct traffic away from the E&B Site; (iii) promote E&B or the E&B Site in emails/newsletters without prior written approval of E&B; (iv) use the Evelyn & Bobbie name, or any variation thereof, in subject lines of emails/newsletters; (v) use the Evelyn & Bobbie name, or any variation thereof, in hidden text or source code; (vi) use the Evelyn & Bobbie name, or any variation thereof, in or as part of any domain name or sub-domain name; (vii) engineer the Participant Channels in such a manner that pulls Internet traffic away from the E&B Site; (viii) engineer the Participant Channels in such a manner that would be considered "keyword stuffing," such as using terms in hidden or live text that are meant to attract search engine spiders in order to determine higher relevancy to the E&B Site; or (ix) purchase any keywords on search sites related to E&B or any variation thereof.

4. RELATIONSHIP OF THE PARTIES.
a. Participant is an independent contractor of E&B, and this Agreement shall not be construed to create any association, partnership, joint venture, employee or agency relationship between Participant and E&B for any purpose. Participant has no authority (and shall not hold itself out as having authority) to bind E&B and shall not make any agreements or representations on E&B’s behalf without E&B’s prior written consent.
b. Participant is not eligible under this Agreement for any benefits offered by E&B to its employees.
c. E&B is not responsible for withholding or paying any income, payroll, Social Security or other federal, state or local taxes, making any insurance contributions, including unemployment or disability, or obtaining worker’s compensation insurance on Participant’s behalf. Participant is solely responsible for all such taxes or contributions, including penalties and interest.

5. PAYMENT. E&B shall pay Participant a commission of ___% of each Qualified Sale, provided however:
a. E&B’s payment obligation is conditioned on its receipt of a properly completed IRS Form W-9.
b. Payments will be made on a monthly basis no later than the five (5) days following the expiration of the calendar month for which the payment is owed.
c. Payments will be made in U.S. dollars.

6. QUALIFIED SALE DEFINITION.
a. For purposes of this Agreement, “Qualified Sale” means E&B’s sale of a Product during the term of this Agreement as result of the customer having clicked through a Link displayed on the Participant Channels to the E&B Site, with the customer then completing the purchase of the Product using the E&B Site. For purposes of clarity, E&B will not pay commissions or other fees on any Product that is subsequently purchased after the customer has reentered the E&B Site other than through the Link, even if the customer previously followed the Link to the E&B Site. Purchases of E&B Gift Cards are not eligible to earn commissions.
b. The amount of the Qualified Sale will be the advertised price of the Product on the E&B Site and for purposes of clarity, excludes amounts paid or payable by the customer for taxes or shipping. Qualified Sales will be calculated in U.S. dollars. E&B will provide Participant monthly tracking of amounts owed by E&B to Participant for Qualified Sales. E&B’s tracking of Qualified Sales will be determinative of the Qualified Sales for which E&B owes commissions hereunder.

7. ORDER PROCESSING. E&B will process product orders placed by customers who follow the Link to the E&B Site. E&B reserves the right to reject orders that do not comply with any and all requirements that E&B periodically may establish. E&B will be responsible for all aspects of order processing and fulfillment. Among other things, E&B will prepare order forms, process payments, cancellations, and returns, and handle customer service.

8. CUSTOMER AND SALES INFORMATION. E&B will own all right, title and interest (including all intellectual property rights) in and to all information that is created or collected in connection with this Agreement, including, without limitation: (i) any contact information collected from any customer who enters the E&B Site using the Link ("Affiliate Customers"); and (ii) any information regarding click-through rates or product purchases by Affiliate Customers ("Sales Information"). Subject to the terms and conditions of this Agreement, E&B grants Participant a limited worldwide, non-exclusive royalty-free license to use the Sales Information to the extent necessary to fulfill Participant’s obligations under this Agreement or for Participant’s internal research purposes. Participant agrees not to disclose any Sales Information or Affiliate Customer contact information to any third party without E&B’s prior written approval. Participant agrees not to send Affiliate Customers email communications promoting Participant or the Participant Channels as an affiliate of E&B or otherwise, unless agreed on in writing by E&B. Participant agrees to maintain and adhere to Participant’s privacy policy (and any updated versions thereof), as posted and and/or linked on the Participant Channels.

9. USE OF PARTICIPANT’S NAME, LIKENESS AND INFORMATION. Participant hereby grants to E&B and its affiliates, and each of their respective direct and indirect successors, licensees and assigns, the right to use Participant’s name, image, likeness and biographical and professional information in connection with the Program, including to advertise and promote the same.

10. E&B COPYRIGHTS/TRADEMARKS. Except as otherwise permitted hereunder, Participant shall not use or reference E&B’s name, logos, trademarks or other intellectual property without its prior written consent.

11. INDEMNIFICATION. Participant shall indemnify, defend and hold harmless E&B and its affiliates, and its and their respective officers, directors, employees, agents, affiliates, successors and assigns, from and against any claims, judgments, damages, liabilities, settlements, losses, costs and expenses, including attorneys’ fees and disbursements arising from or relating to Participant’s breach of this Agreement or failure to perform its obligations and responsibilities hereunder.

12. NO ASSIGNMENT. This Agreement is personal to Participant. Participant shall not assign or otherwise transfer any of his/her rights, or delegate, subcontract or otherwise transfer any of his/her obligations or performance, under this Agreement. Any purported assignment, delegation or transfer in violation of this Agreement is void. E&B may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

13. CONFIDENTIALITY. In addition to and in no way replacing, modifying or terminating any obligations Participant may have under a separate non-disclosure agreement with E&B, Participant agrees to keep confidential and not to use any proprietary business information disclosed by E&B to Participant in connection with this Agreement, including without limitation, any Sales Information.

14. TERMINATION. E&B reserves the right to terminate this Agreement at any time, for any or no reason, upon written notice to the Participant. Participant may terminate this Agreement at any time by informing E&B in writing of its intent to no longer participate in the Program. If E&B terminates this Agreement due to Participant’s failure to perform or deliver or other breach of this Agreement, Participant shall not be entitled to any payment hereunder.

15. DISCLAIMER; LIMITATION OF LIABILITY.
a. E&B makes 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, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage. In addition, E&B makes no representations or warranties that the operation of the E&B Site will be uninterrupted or error-free, and E&B will not be liable for the consequences of any interruptions or errors or termination of any services, products or this Agreement.
b. E&B will not be liable for indirect, special or consequential damages arising in connection with this Agreement or the Program, even if E&B has been advised of the possibility of such damages. Further, E&B’s total aggregate liability arising with respect to this Agreement and the Program will not exceed the total commissions paid or payable to Participant under this Agreement. All claims made hereunder by Participant against E&B shall be made within one hundred twenty (120) days of the act or omission which forms the basis of such claims.

16. CHOICE OF LAW/VENUE. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Oregon, USA, without giving effect to any choice or conflict of law provision or rule. Each party irrevocably submits to the exclusive jurisdiction of the state courts of Oregon and the federal courts located in the city of Portland, Oregon in any legal suit, action or proceeding arising out of or related to this Agreement or the Program.

17. NOTICES. All notices and payments required under this Agreement will be sent to the addresses on the signature page, unless either party notifies the other of an address change. All notices must be in writing.

18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, and communications, whether written or oral, with respect to such subject matter.

19. PPC RESTRICTION RULES: E&B forbids Participant from bidding on Evelyn & Bobbie as an exact or phrase match. As well as the evelynbobbie.com url (or any close variants). E&B forbids Participant from bidding on EB Core® or True Complexion®. E&B allows Participant to bid on product keywords/trademarks such as "Beyond Bra" however Participant is not allowed to bid on "Evelyn & Bobbie Beyond Bra" and so forth. E&B reserves the right to restrict additional keyword & trademark terms as E&B offerings and products evolve.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.

Participant
By____________________________
Name: ________________________
Address:
Evelyn & Bobbie, LLC
By_________________________
Name: _____________________
Address: