Affiliate Marketing Agreement
Between
Agent Nateur, LLC (The “Merchant”)
And
[__] (The “Affiliate”)
This Affiliate Marketing Agreement (the “Agreement”) is made as of [__], 20[__] (the “Effective Date”) by and between Agent Nateur, LLC (the “Merchant”) and [__] (the “Affiliate”) (each of Merchant and Affiliate a “Party” and together the “Parties”).
1. Scope, Term, and Termination.
(a) This Agreement shall remain in effect from the Effective Date until terminated as provided herein (the “Term”).
(b) Promptly after the Effective Date, Merchant shall provide Affiliate with hyperlinks or other strings of data that are coded to: (i) direct a user to Merchant’s internet properties where the user may purchase Merchant’s products; and (ii) cause that user’s particular connected session to be associated with Affiliate in Merchant’s records (each such data string an “Affiliate Link”). Subject to the limitations set forth in this Agreement, Merchant shall pay Affiliate an amount equal to 15% of the moneys which Merchant collects, net of tax, shipping, and discounts, during the Term on each sale of a product to a user who accesses Merchant’s internet properties using an Affiliate Link and purchases a product from Merchant as part of the same connected session. Tracking of such activity and payments to Affiliate shall be made pursuant to Section 3, Tracking and Payment, below.
(c) Notwithstanding the foregoing, Merchant shall have no obligation to pay any commission, and upon request Affiliate shall refund to Merchant all paid commissions, on sales that meet one or more of the following criteria, to be determined in Merchant’s reasonable discretion:
(i) Sales to customers located in Russia, Mexico, or Spain;
(ii) Affiliate presented the Affiliate Link in connection with a coupon, coupon code, or other promise of a discount, whether offered through Affiliate or by a third party in the business of promoting such items to users;
(iii) Affiliate presented the Affiliate Link or made it available in connection with false or misleading statements about Merchant’s product, including without limitation a misstatement of price, or a representation or promise as to discounts or coupons not previously confirmed by Merchant in explicit writing to Affiliate;
(iv) Affiliate presented the Affiliate Link or made it available in connection with a violation of law or regulation for protection of consumers, including without limitation false advertising laws, consumer fraud laws, and Federal Trade Commission regulations (16 C.F.R. Chapter I).
(v) Affiliate presented the Affiliate Link or made it available in connection with a violation of a provision of this Agreement or the ShareASale Terms;
(vi) Sales that Merchant cannot fulfill, despite commercially reasonable efforts, due to force majeure or other circumstances beyond Merchant’s control, including but not limited to supply chain disruptions, business disruptions, sales orders exceeding Merchant’s capacity to fill, acts of God, acts of civil authorities, acts of military authorities, war, riots, embargoes, acts of nature, and natural disasters; or
(vii) Sales that are fraudulent or the result of fraud.
(d) In entering this Agreement, Merchant makes no representations or warranties as to the quality of its products, including without limitation any express or implied warranty as to their merchantability or fitness for a particular purpose. Affiliate represents that it has sufficient familiarity with Merchant’s products to warrant their promotion in connection with Affiliate’s own public-facing materials and statements.
(e) Termination.
(i) Termination of this Agreement shall occur upon any one or more of the following:
(A) Either Party may terminate this Agreement, for any reason or no reason, by written notice to the other Party made through the ShareASale Platform.
(B) Affiliate’s failure to accept a proposed modification by Merchant to this Agreement made through the ShareASale Platform within fourteen days of its making; for purposes of Section 1(e)(ii)(C) below, this shall constitute a termination by Affiliate.
(C) A Party receives notice that either Party has ceased participation in the ShareASale Platform or materially violated or breached ShareASale’s Terms; for purposes of Section 1(e)(ii)(C) below, such a termination shall be considered done by the ceasing or the violating or breaching Party.
(ii) In the event of termination: (A) Merchant may disable and cease to maintain all Affiliate Links previously given to Affiliate and shall have no obligation to provide additional Affiliate Links; (B) Merchant shall have no obligation to pay commissions on sales made after the date of termination, regardless of whether such sales are made via preexisting Affiliate Links; and (C) the rights granted to Affiliate in Section 7, Intellectual Property, shall terminate, and Affiliate shall remove all Affiliate Links from its internet properties and shall cease making any further public-facing statements (including by removing existing such statements from its internet properties) saying or implying that Affiliate may receive commissions on sales of Merchant’s products; provided, however, that if termination is initiated by Merchant, then the foregoing provision (C) shall take effect on the fifteenth day after termination.
2. ShareASale Platform and Terms. Merchant and Affiliate acknowledge that both participate in a program offered by third party Shareasale.com, Inc. or its affiliates (“ShareASale”), that ShareASale hosts an online platform (the “ShareASale Platform”) for affiliate-marketing programs such as the one embodied in this Agreement, and that each Party’s separate relationship with ShareASale and its use of the ShareASale Platform is governed by separate terms and conditions promulgated by ShareASale (the “ShareASale Terms”). Each Party acknowledges that its dealings with the other Party in considering entering this Agreement and in performing hereunder shall be conducted solely through the ShareASale Platform. Each Party represents and warrants that it will comply with the ShareASale Terms in performing under this Agreement.
3. Tracking and Payment.
(a) Merchant and Affiliate acknowledge that the ShareASale Platform’s services include tracking of internet users’ access of Affiliate Links, resulting sales, and commissions due thereunder. Each Party acknowledges that the other will have access to such information through use of the ShareASale Platform. Notwithstanding the foregoing, information provided through the ShareASale Platform as to commissions due shall be for informational purposes only, and Merchant retains ultimate responsibility for verifying Affiliate’s performance under this Agreement, including without limitation determining whether payment of commissions is appropriate under Section 1.
(b) Merchant shall pay commissions due under Section 1 through the ShareASale Platform in accordance with the ShareASale Terms.
4. Relationship of the Parties. Nothing contained within this Agreement shall be construed to form any partnership, joint venture, agency, franchise, sales representative/ commission salesman, or employment relationship. Nothing in this Agreement restricts Merchant or Affiliate from entering similar arrangements with other persons or entities.
5. Integrity of Program and Affiliate Links.
(a) Merchant shall use commercially reasonable efforts to maintain the integrity and operability of its Affiliate Links, but shall not be liable to Affiliate for sales or commissions lost or foregone as a result of circumstances or of failures of Affiliate Links beyond Merchant’s reasonable control. Merchant accepts no responsibility for the security or integrity of Affiliate’s information technology systems. Affiliate acknowledges that its participation in this program may result in the placement of “cookies” (i.e., data and codes) on the electronic devices of persons accessing Affiliate’s internet properties, as well as Merchant’s or ShareASale’s collection, tracking, and use of data as to the persons and electronic devices utilizing Affiliate Links.
(b) During the Term, Affiliate shall not, in connection with search engine marketing, bid on any of the following terms or their reasonably near derivations (e.g., “agent nateur”, “nateur agent”, “agent nature”, etc.):
agent nateur
holi (mist)
holi (skin)
holi (bath)
holi(youth)
holi (wash)
holi(oil)
holi (trinity)
holi (flame)
acid (wash)
holi(rose)
nateurious
holi (touch)
holi (bright)
holi (dew)
holi (lift)
holi (locks)
holi(water)
hair (silk)
holi (crème)
holi (cleanse)
holi (rolli)
holi (sun)
holi (sex)
holi (mane)
holi (c)
holi(stick)
Upon reasonable request by Affiliate, Merchant may consent in writing in its sole discretion to relax any one or more of the above bidding restrictions.
(c) Affiliate shall not reverse engineer, disassemble, or otherwise manipulate or use Affiliate Links or other data or intellectual property disclosed or exchanged in connection with this Agreement for any purpose other than those embodied in this Agreement. Affiliate shall not in any way alter any Affiliate Link, except upon Merchant’s express written permission. Affiliate shall be liable to Merchant for all moneys Affiliate earns as a result of any alteration by Affiliate of an Affiliate Link, shall give Merchant an accounting of all such moneys earned, and shall pay all such moneys to Merchant as liquidated damages.
(d) Affiliate shall not, for the purpose of monetization, collect or utilize data arising from any user’s use of Affiliate Links. Affiliate may collect data for non-monetizing purposes only. By way of example and not limitation, impermissible monetizing uses include packaging of data for sale in the marketplace, analysis of user data for targeted marketing, or compilation of email addresses for email marketing; permissible non-monetizing uses include internal analysis of Affiliate’s website traffic or social media utilization.
6. Affiliate Obligations & FTC Compliance.
(a) In performing under this Agreement, Affiliate shall not disparage Merchant or its products nor allow Merchant or its products to be presented in a way that a reasonable consumer would associate with disparaging or offensive material.
(b) Affiliate shall have sole responsibility for ensuring, and shall use best efforts to ensure, the accuracy of its statements and representations, express or implied, about Merchant’s products, including without limitation their respective prices.
(c) In making statements about Merchant’s products and directing traffic to Affiliate Links, Affiliate shall comply with the law, regulation, related authority, and prevailing customs of the particular region toward which Affiliate directs its activities and its public-facing statements. By executing this Agreement, Affiliate represents and warrants that it is familiar with and, in the course of performance under this Agreement, is capable of and intending to fully comply with, all such law and regulation, including without limitation for the protection of consumers and requirements for making appropriate disclosures in its public-facing statements as to the nature of its relationship with Merchant pursuant to this Agreement. Affiliate’s compliance obligation extends at least to the following:
(i) Within the United States, compliance with all applicable state and federal law and regulation, including without limitation those relating to false advertising, consumer fraud, and statutes and regulations enforced by and regulations promulgated by the Federal Trade Commission (“FTC”) (16 C.F.R. Chapter I), including without limitation FTC guidance issued in accordance with such regulation. By way of example and not full statement of the import of such regulations and guidance, Affiliate is required to clearly and prominently disclose to consumers, in statements in close proximity to statements about Merchant or its products, Affiliate’s “material connection” with Merchant, such as that Affiliate may receive commission in connection with sales of Merchant’s products generated through use of Affiliate Links.
(ii) Outside of the United States, compliance with all applicable law and regulation in each region to which Affiliate directs its statements and marketing activities, including without limitation laws and regulations as to consumer protection, data collection and use (e.g., the General Data Protection Regulation of the European Union), and payment and collection of taxes and similar duties.
7. Intellectual Property. Nothing in this Agreement is intended to constitute a transfer, surrender, assignment, or waiver of Merchant’s intellectual property rights, including without limitation copyrights, trademarks, trade secrets, patents, and the like. Subject to the limitations in this Section and elsewhere in this Agreement, Merchant hereby grants Affiliate a non-exclusive, non-transferable, revocable license to use images of Merchant’s products, logos, product labels, and trade dress, and to use Merchant’s name, marketing copy, taglines, and product descriptions in support of Affiliate’s efforts to drive traffic to Merchant using Affiliate Links. Affiliate shall not alter any such materials; incorporate them in Affiliate’s own marketing or advertising of its own brand, products, services, or properties; nor present them in such a way as would reasonably be expected to confuse a reasonable consumer as to the source of Merchant’s products. Affiliate hereby provides Merchant a non-exclusive license to use Affiliate’s name, trademarks, service marks, and other intellectual property to reference Affiliate’s promotion or other discussion of Merchant or its products.
8. Limits of Liability and Indemnification.
(a) Affiliate’s right to recovery from Merchant for any alleged breach of this Agreement shall be limited to payment of no more than the amount in commissions that Affiliate would have been due under this Agreement but for Merchant’s gross negligence, or willful misconduct. Merchant shall not be liable for any indirect, incidental, consequential, special, punitive, or exemplary damages whatsoever arising from, under or in connection with this Agreement, or for any lost profits or data, however caused.
(b) Affiliate shall defend, indemnify, and hold harmless Merchant from and against any and all claims and incurred losses, including damages, reasonable attorneys’ fees, and court costs, as a result of claims and demands by a third party, including without limitation an individual, entity, or government agent or instrumentality, no matter where in the world situated, alleging that Affiliate has breached any representation, warranty, or other provision of this Agreement, including without limitation Affiliate’s obligation to comply with consumer protection laws and the laws and regulations of the particular region in which Affiliate conducts any activity. Affiliate shall select counsel reasonably acceptable to Merchant. Even though Affiliate shall defend the action, Merchant may, at its option and its own expense, engage separate counsel to advise it regarding the claim and its defense; such counsel may attend all proceedings and meetings, and Affiliate’s counsel shall actively consult with and inform Merchant’s counsel. Affiliate shall not compromise or settle a suit, claim, or proceeding against Merchant unless it assumes the obligation to indemnify for all losses relating thereto.
9. Miscellaneous Provisions.
(a) Entire Agreement. This Agreement constitutes the entire understanding between the Parties with respect to the subject matter set forth herein. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral. However, this Agreement does not supersede the ShareASale Terms, but rather requires compliance with them as set forth herein. In the event of a conflict between this Agreement and a provision of the ShareASale Terms, this Agreement shall govern.
(b) Assignment and Modification. Neither Party may assign or transfer to any third party this Agreement or the rights and obligations arising hereunder without the express prior written consent of the other Party, such consent not to be unreasonably withheld or delayed. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. This Agreement shall not be changed, modified, or amended except by a writing signed by both Parties. Proposals for modifications by either Party may be made in writing through the ShareASale Platform or by email to Merchant at kristen@agentnateur.com.
(c) Governing Law and Jurisdiction. This Agreement shall be governed by, and performance shall be determined in accordance with, the laws of the United States of America and of the State of California without regard to conflicts of law or choice of law rules or principles. The Parties hereby consent to the exclusive jurisdiction and venue of the state or federal courts sited within the State of Los Angeles, County of Los Angeles, for any dispute or legal matter involving this Agreement, and the Parties hereby waive all objection to such venue based on claims of inconvenient forum.
(d) Severability. Any part, provision, representation, or warranty of this Agreement prohibited or held to be void or unenforceable shall be ineffective without invalidating the remaining provisions hereof.
(e) No Waiver. Any Party’s failure to enforce any provision of this Agreement shall not constitute a waiver of any future enforcement of that provision or of any other. Waiver of any part or subpart of this Agreement will not constitute a waiver of any other part or subpart.
(f) Headings. Headings of Sections and subparts under this Agreement are for convenience and organization only. Headings shall not affect the meaning of any provisions of this Agreement.
(g) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original instrument for all purposes, but all of which shall together comprise one and the same instrument. An executed copy of this Agreement may be delivered by facsimile or email by one party hereto to the other party, and such facsimile or scanned copy of such executed Agreement shall be binding as an original.
Signature page follows
IN WITNESS WHEREOF, the duly authorized representative of each Party executes this Agreement as of the Effective Date.
MERCHANT:
AGENT NATEUR, LLC
By:
Name:
Title:
Date:
AFFILIATE:
[__]
By:
Name:
Title:
Date:
