INFLUENCER / AFFILIATE / ENDORSER AGREEMENT
THIS AGREEMENT is made as of this September 1st, 2023 by and between
Veronique Gabai, Ltd., with offices at 200 East End Avenue, 12-O/11-K,New York, NY
10128 ("Endorsed Company") and ShareASale and its affiliates ("Endorser") (collectively the
"Parties").
WHEREAS, Endorser is recognized and widely known throughout the internet as an
affiliate program.
WHEREAS, Endorser's name, and associated internet-based accounts (the
"Account(s)") have, by virtue of his/her ability and experience, acquired a following by the
purchasing public important to certain advertising, promotion, and sale of services and
merchandise; and WHEREAS, Endorsed Company is desirous of having the Endorser promote both
the Veronique Gabai name and brand and the sale of the Endorsed Company's Products
(“Products”) via the Account(s). NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, it is agreed as follows:
1. PROMOTION
Subject to the terms and conditions set forth herein, Endorser shall promote the
Products, during the Term of this Agreement on the Accounts and will provide a list of the
Accounts to the Endorsed Company ("Promotion").
2. TERM
This Agreement shall be effective as of the date of execution by both Parties and shall
extend for six (6) months (“Initial Term”) and will be extended for additional six (6) month
terms upon mutual agreement of the Parties.
3. COMPENSATION
In consideration for the Promotion provided for hereunder, Endorsed Company agrees
to pay to Endorser as follows:
Commissions will be paid to the Endorser based upon a percentage of sales made to users
who access the Endorsement Company site through the Endorser’s site. Commissions will be
calculated based upon the gross sales price, but not including any shipping and handling,
sales tax, special service fees such as gift wrapping or packaging, late charges, collection
costs, imports/export duties, and any other payment made to Endorsement Company that is
not the purchase price for the product that is purchased. Commissions will not be calculated based upon amounts that are attributable to credit card fraud, credits given to customers, bad
debt right-off and returned goods. Endorsed Company reserves the right to deduct in
subsequent months for any commission that Endorsed Company paid that is for a product that
is subsequently returned or refunded, or for any other reason if the previous monthly
commission was overpaid or later subject to reduction. Commissions will only be paid on
sales that are tracked through the ShareAsale online tracking system and indicate the
Endorser’s link as the source. There is no right to commissions if a user later returns to
Endorsed Company and makes a purchase through another link or source other than through
the Endorser website or link. The Endorser has no right to commissions based upon
subsequent sales, even if the customer first arrived at the Endorsed Company site through the
link from the Endorser’s site or link. Endorsed Company will pay commissions only upon
collection by Endorsed Company. The Endorser has no right to commissions until the
applicable customer has paid Endorsed Company in full. Only purchases that are made
through the Endorsed Company online ordering process will count towards commission
calculations. For example, if a customer visits the Endorsed Company web site through the
link from the Endorser’s web site and instead of placing an online order calls and places an
order via telephone, the Endorser will have no right to any commission from that sale.
"Gross Sales" shall mean Endorsed Company's Retail sales (the Retail invoice amount billed to
customers) of product. A product shall be considered "sold" when such product is billed,
invoiced, shipped, paid for, and not returned.
4. NOTICES AND PAYMENTS
Any notice required to be given pursuant to this Agreement shall be in writing and
mailed to Endorsed Company at such address as is designated in writing to Endorser by
email, certified or overnight mail, return receipt requested.
5. REPRESENTATIONS. WARRANTIES AND INDEMNITY
a. Endorser represents and warrants that he or she will not promote Products that
are identical or substantially similar to the Products.
b. Endorser represents and warrants that he or she will place links on his or her
websites, emails and blogs directing customers to www.veroniquegabai.com. Endoreser may
display Endorsement Company’s material for the purpose of promoting the Endorsement
Company website. The Endorser represents and warrants her or she will not modify the
links, banners or any other materials provided by the Endorsement Company.
c. Endorsement Company will make available banners images, logos and links.
d. Endorser further represents and warrants that he or she has not misrepresented or
concealed anything with respect to his or her background that may have a prejudicial effect on
the value of the endorsement, that he or she is in good health and does not plan to retire during
the Initial Term of this Agreement, and that he or she has not engaged nor will he or she
knowingly engage during the Initial Term of this Agreement in any activity (criminal or
otherwise) that could potentially have a negative impact on the Product.
e. Endorser agrees she will not post content on any social media platform that, as
determined by Endorsed Company in its sole discretion, defames, misrepresents or contains
disparaging remarks about Endorsed Company, its officers, directors, agents and employees; the
Product or other goods and/or services manufactured, sold or provided by Endorsed Company;
or that violates any law. This representation and warranty will survive termination of this
agreement.
6. TERMINATION
A. Endorsed Company shall have the right to terminate this Agreement upon
ten (10) days prior written notice to Endorser or his or her legal representative in the event that
Endorser does any of the following:
1. Engages in illegal, immoral, or criminal conduct resulting in a felony
conviction;
2. Misrepresents or conceals anything in his or her background that could
be detrimental to the value of the endorsement being made;
3. Engages in conduct contrary to the best interests of Endorsed Company;
4. Engages in conduct that offends the sensitivities of a significant portion
of the population;
5. Engages in conduct that could bring Endorser into public disrepute;
B. Either party may terminate this Agreement upon thirty (30) days' written
notice to the other party in the event of a breach of any provision of this Agreement by the
other party, provided that, during thirty (30) day period, the breaching party fails to cure such
breach. The Terms and Conditions list a termination in three (3) days for violation of certain
referenced terms in the Terms and Conditions. The termination clause in the Terms and
Conditions is not superseded by this Agreement.
C. If this Agreement is terminated, the Endorser agrees the relationship
discontinues and the Endorser will immediately cease and desist using all content or materials
of Endorsement Company.
7. RELATIONSHIP OF THE PARTIES
Endorser's performance of services for Endorsed Company hereunder is in his or her
capacity as an independent contractor. Nothing contained in this Agreement shall be construed
as creating an employer/employee, a partnership, or a joint venture relationship between
Endorser and Endorsed Company.
8. JURISDICTION/DISPUTES/BREACH OF AGREEMENT
This Agreement shall be governed in accordance with the laws of the State of New
York. All disputes, including claims for equitable relief, under this Agreement shall be resolved
through the American Arbitration Association (AAA) in the State of New York and the Parties
all consent to the jurisdiction of same, agree to accept service of process by mail, and hereby
waive any jurisdictional or venue defenses otherwise available to them.
9. ASSIGNABILITY
Neither party may assign this Agreement or the rights and obligations thereunder to
any third party without the prior express written approval of the other party which shall not be
unreasonably withheld.
10. SEVERABILITY
If any term, clause or provision hereof is held invalid or unenforceable by a court of
competent jurisdiction, such invalidity shall not affect the validity or operation of any other
term, clause or provision and such invalid term, clause or provision shall be deemed to be
severed from the Agreement.
11. INTEGRATION
This Agreement plus the Terms and Conditions constitutes the entire understanding of
the Parties, and revokes and supersedes all prior agreements between the Parties and is intended
as a final expression of their total Agreement. The Terms and Conditions are incorporated fully
herein. It shall not be modified or amended except in writing signed by the Parties hereto and
specifically referring to this Agreement. This Agreement and Terms and Conditions are to be
read jointly. The Agreement shall take precedence over any other documents which may
conflict with this Agreement.
12. NON-DISPARAGEMENT
The Endorser agrees that she will not at any time make, publish or communicate
to any person or entity or in any public forum any defamatory or disparaging remarks,
comments or statements concerning the Endorsed Company or its businesses, or any of
its employees, officers, members of its Board, and existing and prospective customers,
suppliers, investors and other associated third parties. The Endorsed Company agrees
that the Endorsed Company will not at any time through any public statement make,
publish or communicate to any person or entity or in any public forum any defamatory or
disparaging remarks, comments or statements concerning the Endorser or her businesses.
13. CONFIDENTIALITY
The terms of this Agreement and all communications thereto shall be kept
confidential by the Parties and their respective counsel and shall not be disclosed to any other
party, including but not limited to Internet or on-line forums. Notwithstanding the foregoing,
in the event of any legal action or proceeding or asserted requirement under applicable law or
government regulations requesting or demanding disclosure of this Agreement or the terms
hereof, the recipient shall notify the other party in writing of such request so that the other party may seek appropriate protective measures. No party will disclose this Agreement for any reason without written permission of the other party.
