This is the Agreement that will govern your participation in an Engagement through the Awin US Network with Us. Please read this Agreement and check the box on the previous page to digitally sign this Agreement. To print a copy of this Agreement, please use your browser's print command.
PUBLISHER AGREEMENT
This Publisher Agreement (this "Agreement") is made between you ("You" or “Your”) and The Body Shop International PLC ("We" or "Us" or “Our”). Neither Awin Limited nor any of its affiliates are parties to this particular Agreement, You have your own agreement directly with Awin Limited (“ AWIN”).
BACKGROUND
Both parties desire to establish the general terms and conditions which shall govern advertising and commission arrangements between them resulting from our participation in the AWIN US Network. We are engaging You to promote our products via your online presence and to attract visitors to Our Site (a “Customer”) to purchase products.
TERMS AND CONDITIONS
In consideration of the promises set forth below, each party agrees as follows
1. Offers and Engagements.
1.1. From time to time, We may post on the Awin US Network interface (the “Interface”) offers (each, an "Offer") to pay to participants a specified commission in return for certain advertising services leading to a Qualifying Link (defined below).
1.2. If You accept one of our Offers or post a Qualifying Link, we will have entered into an "Engagement." Each Engagement shall be governed by the terms and conditions of this Agreement (and where possible shall have the same identification number as the original Offer). Each Offer is governed by the terms of the Engagement which shall be specific to that Offer and in no way alter the terms and conditions of this Agreement.
1.3. At any time prior to You displaying a Qualifying Link on one of Your websites, We may, with or without notice (a) change, suspend, or discontinue any aspect of an Offer or an Engagement or (b) remove, alter, or modify any graphic or banner ad that we have submitted for an Offer or an Engagement. You agree to promptly implement any request from Us to remove, alter or modify any such graphic or banner ad.
2. Your Responsibilities.
2.1. You hereby agree to comply with all applicable laws, the US Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the “CAP Code”); including guidance and advice from the Committee of Advertising Practice and the Broadcast Committee of Advertising Practice and adjudications by the Advertising Standards Authority (the “ASA”) as updated from time to time.
2.2 You hereby agree that the position, prominence, and nature of links on the Your site shall comply with any requirements specified in the Engagement, but otherwise will be at Your discretion.
2.2. You agree not to make any representations, warranties, or other statements concerning Us, Our site, any of Our products or services, or Our site policies that are not in accordance with these terms and conditions, with the information provided by us including the CAP Code regulations, unless expressly authorized by the Engagement.
2.3. You can find URLs to be used for your Engagement on the Interface in the Overview section or you can take the URLs from Our website (the "Required URLs"). You are to add your tracking details to the Required URLs accordingly to link Your site to Our Site (details on how to do this can be found in the Interface in the Links and Tools section) "Qualifying Link"). Your payment is based on a Customer hitting Our site thru Your Qualifying link and finalizing the sale of products. There is a 30-day window of time in which a Customer can purchase products in which You receive a commission based on your Qualifying link.
2.4 You are responsible for notifying Us (by using the email found in the Overview section of the Interface and AWIN of any incorrect, dead, or misdirected Required URLs specified in the Engagement or other problems with Your participation in the Engagement. We will respond promptly to all concerns upon receipt of Your notification.
3. Commissions.
3.1. We agree to pay You the commission specified in the ‘Commissions’ section of the Interface if We sell to the Customer any product via Your Qualifying Link.
3.3. We shall have the sole right and responsibility for processing all orders made by Customers. You acknowledge that all agreements relating to sales to Customers shall be between Us and the Customer. With the exception of any cashback sites, You are to submit the cash back to the Customer yourself and We do not have any part in this transaction
3.4. All determinations of Qualifying Links and whether a commission is payable will be made by AWIN and will be final and binding on both You and Us, as per the terms and conditions of Your agreement with AWIN. Prices for the products will be set solely Us in Our sole discretion.
4. Ownership and Licenses.
4.1. Each party owns and shall retain all right, title, and interest in its names, logos, trademarks, service marks, trade dress, copyrights, and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights, and proprietary technology currently used or which may be developed and/or used by it in the future.
4.2. We grant You a revocable, non-exclusive, worldwide license to use, reproduce and transmit the name, logos, trademarks, service marks, trade dress, and proprietary technology, as designated in the Engagement or during the registration process in the AWIN US Network, on Your site solely for the purpose of creating links from Your site(s) to Our site(s) during Engagements and for no other reason whatsoever. Except as expressly set forth in this Agreement or permitted by applicable law, You may not copy, distribute, modify, reverse engineer, or create derivative works from the same. You may not sublicense, assign or transfer any such licenses for the use of the same, and any attempt at such sublicense, assignment or transfer is void.
4.3. You grant Us a non-exclusive, worldwide, royalty-free license to use, reproduce and transmit any graphic or banner ad submitted by You solely for co-branding purposes or as a return link from Our site(s) to Your site(s). We will remove such graphic or banner ads upon Your request.
5. Termination.
5.1. You may terminate this Agreement at any time by deleting Your acceptance of the Engagement through the AWIN US Network and immediately taking down any Qualifying Links that relate to either the Engagement or this Agreement. Termination of one Engagement shall not automatically terminate this Agreement as a whole or any other Engagement.
5.2 We may terminate any Engagement and this Agreement as a whole immediately should You breach (a) any of the terms and conditions of this Agreement (including everything on the ‘Overview’ section of the Interface) or (b) any rules of the CAP Code. We can terminate this Agreement as a whole or any Engagement without cause by giving You at least 7 days’ notice by email.
5.4 Termination of this Agreement shall also terminate any outstanding Engagements. However, all rights to payment, causes of action, and any provisions which by their terms are intended to survive termination shall survive termination of this Agreement.
6. Representations.
6.1. Each party represents to the other that (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses granted hereby, and (b) any material which is provided to the other party and displayed on the other party's site will not (i) infringe on any third party's copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, anti-discrimination or false advertising including but not limited to the Cap Code; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
6.2. EXCEPT FOR THE ABOVE REPRESENTATIONS NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Indemnification.
7.1. Each party hereby agrees to indemnify, defend and hold harmless the other party and its publishers, directors, officers, employees, and agents, from and against any and all liability, claims, losses, damages, injuries, or expenses (including reasonable attorneys' fees) brought by a third party, arising out of a breach, or alleged breach, of any of its representations or obligations herein.
7.2 You hereby agree to indemnify, defend and hold Us, including our directors, officers, employees, and agents, harmless from and against all liability, claims, losses, damages, injuries, or expenses (including reasonable attorneys' fees) for any use of Our name, logos, trademarks, service marks, trade dress and proprietary technology that is (i) not in accordance with the Engagement or (ii) that is out of date and not removed or (i) which leads to any complaints to the ASA or any other governing body. For the avoidance of doubt, this clause means that if You use Our logos, name, or trademark correctly, not in accordance with an Offer or Engagement, or if any post is in violation of local laws or ASA guidelines You are liable for any sanctions, court cases or other outcomes.
8. Limitation of Liability.
8.1. In no event shall either party be liable to the other party for any direct, indirect, special, exemplary, consequential, or incidental damages, even if informed of the possibility of such damages.
8.2. The parties agree that the AWIN US Network and AWIN and its publishers, officers, directors, employees, and agents shall not be liable to either party for any direct, indirect, special, exemplary, consequential, or incidental damages, even if informed of the possibility of such damages.
10. General.
10.1. Each party shall act as an independent contractor and shall have no authority to obligate or bind the other in any respect.
10.2. This Agreement will be governed by the laws of the United States. Each party consents to the exclusive jurisdiction and venue of the English courts. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any action, suit, or proceeding arising out of or relating to this Agreement.
10.3. By accepting any Offer or Engagement through the AWIN US Network, You agree that you will be deemed to have executed, and will be bound by, this Agreement.
10.4. 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 or others of them may be invalid or unenforceable in whole or in part.
10.5 Failure or partial failure by either party to enforce at any time and/or for any period any one or more of the provisions of the Agreement shall not be a waiver of them or of their respective right at any time subsequently to enforce them.
10.6 We shall be entitled to license or assign any of Our rights, benefits, and interests in or under this Agreement to any affiliated or associated company. We are entering into this Agreement with You for Your expertise and skill and so You have no right to assign or transfer any rights, benefits, or interests in or under this Agreement.
10.7 No variation of this Agreement shall be effective unless made in writing and signed by both Parties.
10.8 This Agreement represents the entire agreement between the parties in respect of the matters contained therein and supersedes and replaces any prior agreement, understanding, or arrangement between the parties. Each party acknowledges that in entering into this Agreement it does not rely on and shall have no remedy in respect of any statement, representation, warranty, or understanding (whether negligently or innocently made) of any person (whether a party to this agreement or not) other than as expressly set out in this Agreement. Without prejudice to the foregoing, the only remedy available to a party in respect of a breach of any representation which is incorporated in this Agreement shall be for breach of contract. Nothing in this clause shall operate to limit or exclude any liability for fraud terms.
