MARKETING AFFILIATE AGREEMENT
Thank you for agreeing to participate in Woosh’s affiliate marketing program (“Program”); we are looking forward to working with you. This Marketing Affiliate Agreement (the “Agreement”) is entered into between Woosh Beauty, LLC, of 140 West 22nd Street, New York, New York 10011 (“Woosh”) and you, effective as of the date you sign this Agreement (the “Effective Date”) for your participation in the Program.
WHEREAS, Woosh is a seller of beauty products (the “Products”);
WHEREAS, you desire to assist Woosh promotion sales of the Products in exchange for the consideration described in Section 2 of this Agreement.
WHEREAS, the parties desire to enter into this Agreement for purposes of documenting the promotional efforts to be provided by you and the consideration to be provided by Woosh.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
1. Description of Services. You will assist Woosh in the marketing and sale of the Products. The marketing services provided by you under this Agreement will include, but will not be limited to, you communicating information to your associates and audience about the Products (each communication a “Post”). Each Post will include a link where a viewer of the Post can purchase the Products (the “Link”). The parties agree that all Posts, in any form or media, created by you in connection with this Agreement and that reference Woosh, including without limitation, any textual and visual content, including emails, internet posts, and all social media content, must be approved in writing by Woosh prior to their dissemination or publication to any third parties via social media, email, or any other communication means.
2. Your Consideration.
(a) In exchange for all the services provided by you under this Agreement, Woosh will pay you a commission of 10% of the total transaction amount for all sales completed via the Link.
(b) Commissions are accrued at the time Woosh receives payment from a customer transaction (subject to offset or reduction due to refunds or returns). Commissions will be paid to you by Woosh no later than the last day of the calendar month following the date the transaction was completed via the Link.
(c) Woosh will not be required to pay a commission if doing so would be prohibited by law or with respect to any amounts collected by Woosh after the last day of the month in which the Agreement is terminated.
(d) You are solely responsible for any expenses you incur in performing your services under this Agreement.
3. Duration of Agreement. This Agreement shall become effective on the Effective Date and will remain in effect for ninety (90) days, unless terminated as described in paragraph 11 below.
4. Relationship; Nature of Services. It is understood that you are an independent contractor of Woosh. Nothing contained in this Agreement should be construed to be inconsistent with your status as an independent contractor. You expressly represent and warrant to Woosh that you are and will remain in full compliance with all obligations related to the payment, reporting and filing of federal, state and local taxes, and any other laws applicable to the performance of your activities under this Agreement. Woosh shall have no responsibility for any such obligations.
5. Authority. You shall have no authority to extend an offer or quote on behalf of Woosh, nor to enter into any agreement, commitment or obligation on behalf of Woosh, without prior written authorization by Woosh. Sole authority to make contracts, establish prices, or accept clients rests with Woosh at all times. Nothing contained in this Agreement shall make you an agent of Woosh.
6. Ownership of Business Property and Information. It is understood and agreed that all materials, regardless of medium, created by Woosh to promote the Products will be the sole property of Woosh, unless the parties expressly agree otherwise in a written agreement signed by you and Woosh.
(a) Subject to the terms and conditions of this Agreement, Woosh hereby grants you a limited, non-transferable, non-sublicensable, world-wide, non-exclusive, royalty-free license to use Woosh’s trademarks, logos and brand names (the “Woosh Brands”) solely to fulfill its obligations under this Agreement and for promotion of the Products. You may not modify the Woosh Brands in any way. You will obtain Woosh’s written approval prior to each use of the Woosh Brands in any and all social media, press releases, newsletters, advertisements, promotions, publications, postings, and other public statements, in any visual medium, made by you or prepared on its behalf. Your right to use the Woosh Brands shall cease upon the expiration or termination of this Agreement. You understand and agree that nothing in this Agreement shall give you any right, title or interest in the Woosh Brands other than the uses specified herein. Woosh reserves all of its right, title and interest in and to the Woosh Brands, and all other intellectual property rights in association therewith.
(b) The license granted in paragraphs 6(a) shall extend to and include your use of the Woosh Brands in any and all media whatsoever, whether now known or hereafter devised, including social media, digital media, broadcast media and other media.
(c) Notwithstanding anything to the contrary, you acknowledge and agree that (i) you will acquire no ownership rights in or to Woosh’s trademarks, logos and brand names (collectively, the “Intellectual Property”), by virtue of this Agreement or otherwise and all use by it of Woosh’s Intellectual Property shall be deemed to inure to the benefit of Woosh; (ii) you shall not directly or indirectly contest or aid in contesting Woosh’s ownership of Woosh’s Intellectual Property or the validity of Woosh’s Intellectual Property; and (iii) you shall not do anything inconsistent with or which impairs Woosh’s ownership of or the validity of Woosh’s Intellectual Property.
(d) You will own and retain all right, title, and interest in and to the Posts, subject to the license granted to Woosh in this paragraph. Woosh will own and retain all right, title, and interest in and to all derivative works of the Posts made by Woosh, or by any third party for our benefit subject to your rights in the underlying Posts. You hereby grant to Woosh and our affiliates, and each of our respective direct and indirect licensees, successors, and assigns, an exclusive, perpetual, irrevocable, freely transferable and sublicensable, fully paid-up and royalty-free right and license to use the Posts, including all copyrights and other intellectual property rights therein and all renewals and extensions thereof, in all formats and media, whether now known and existing or hereafter discovered or developed, throughout the universe, for all or any purposes whatsoever. For purposes of clarity and without limiting the foregoing, you agree that this license gives us the right: (a) to modify, edit, combine with other materials, translate, include in collective works, and otherwise create derivative works of the Posts; and (b) to reproduce, perform (publicly or otherwise), display (publicly or otherwise), and transmit the Posts, including any derivative works of the Posts, in whole or in part. You acknowledge and agree you have no right for approval of any of Woosh’s exercises of the license you have granted to Woosh in this paragraph.
7. Confidentiality.
(a) “Confidential Information” means and includes any and all of the following: trade secrets, data, know-how, pricing information, business plans, business proposals, manuals, marketing plans, and all other information of a confidential or proprietary nature provided to one party by the other party. Without limiting the foregoing, the terms and existence of this Agreement are the Confidential Information of both parties.
(b) Confidential Information does not include information that the receiving party can prove, by clear and convincing evidence: (i) is generally available to and known by the public other than as a result of the receiving party’s breach of this Agreement; (ii) was made available to the receiving party on a non-confidential basis from a source that was not prohibited by a contractual, legal, or fiduciary obligation from disclosing such information to the receiving party; (iii) was developed by the receiving party without reference to or reliance upon the Confidential Information; or (iv) was known by the receiving party prior to disclosure by the disclosing party. If the receiving party is compelled by applicable law or court order to disclose any Confidential Information, then, to the extent legally permissible, the receiving party shall (x) promptly, and prior to such disclosure, notify the disclosing party in writing of such requirement so that the disclosing party can seek a protective order or other remedy, (y) provide reasonable assistance to the disclosing party in opposing such disclosure or seeking a protective order or other limitations on disclosure; and (z) disclose only that portion of the Confidential Information that is legally required. Any such required disclosure shall not constitute a waiver of the confidentiality obligations contained herein with respect to that Confidential Information or any other Confidential Information of the disclosing party for any other purpose.
(c) Each party receiving Confidential Information of the other party shall: (i) keep all of the disclosing party’s Confidential Information confidential; (ii) only use the disclosing party’s Confidential Information to the extent necessary to perform its obligations under this Agreement; (iii) not disclose any of the disclosing party’s Confidential Information to any third party without the disclosing party’s prior written consent; (iv) only disclose the disclosing party’s Confidential Information to its employees, agents, directors, and officers to the extent necessary to perform its obligations under this Agreement; (v) not use the disclosing party’s Confidential Information in any manner detrimental to the disclosing party; and (vi) return all of disclosing party’s Confidential Information within its possession, custody, or control to the disclosing party within ten (10) days of the expiration or termination of this Agreement.
8. Monitoring Posts. You understand Woosh will be monitoring your Posts for compliance with this Agreement. Woosh has the right to address noncompliant Posts by taking any of the following actions alone or in combination:
(a) Requiring you to fix the Post;
(b) Withholding commission payments; and
(c) Terminating the Agreement for material breach pursuant to section 11(a).
9. Representations and Warranties. You represent and warrant:
(a) all oral and written statements made by you with respect to Woosh and the Products will reflect your honest views;
(b) all Posts should make factual statements only about Woosh and the Products which you know for certain are true and can be proven or verified;
(c) Your Posts will be original and created solely by you and will not include the intellectual property of other parties, including any third-party music, photographs, artwork, trademarks, logos, or slogans;
(d) Your Posts will not include any person, or personally identifiable information about anyone, other than you unless you receive Woosh’s prior written approval and have the persons at issue sign a release provided by Woosh;
(e) Posts will comply with the terms of use on any platform upon or via which Posts are disseminated;
(f) you will perform all services rendered pursuant to this Agreement in compliance with all applicable federal and state statutes and regulations including the Federal Trade Commission’s Guides Concerning Endorsements and Testimonials and email marketing regulations; and
(g) you will not at any time hereafter, including after the termination of this Agreement disparage or portray in a negative light Woosh or the Products, whether in writing or orally, in any medium now known or hereafter devised including audio or video recordings, email, social media, or websites.
10. Remedies. The parties acknowledge that any breach of the terms of paragraph 6 (Ownership of Business Property and Information), paragraph 7 (“Confidentiality”), or paragraph 8 (“Representations and Warranties”) will cause irreparable harm to the non-breaching party that could not adequately be remedied by money damages. Therefore, in the event of a breach or threatened breach of paragraphs 6, 7, or 8, the non-breaching party will be entitled to temporary, preliminary and permanent injunctive relief without any requirement of bond, and recover from the breaching party its costs and attorney fees incurred in proceedings to enforce this Agreement, in addition to any other legal or equitable remedies to which the non-breaching party may be entitled.
11. Termination.
(a) Either party may terminate this Agreement at any time, with or without cause, by giving the other party written notice of termination at least five (5) calendar days in advance of the effective date of termination. Either party may terminate this Agreement at any time without advance notice if the other party materially breaches this Agreement.
(b) Upon termination of this Agreement, you will be eligible for commissions (in accordance with Section 2 above) only on commissions accrued on or before the last day of the month in which the termination of the Agreement becomes effective.
(c) Paragraphs 4-20 of this Agreement shall survive the termination of this Agreement.
12. Indemnification. You agree to indemnify and hold harmless Woosh, and Woosh’s members, managers, directors, officers, employees, agents and representatives, and their respective successors and assigns (each, a “Woosh Indemnified Party”), from and against all claims, expenses and liability arising out of any personal injury, property damage or other damage, claim, or loss sustained by the Woosh Indemnified Party, including, without limitation, all of the costs and expenses (including reasonable attorneys' fees) related to the same, if such damage, claim or loss arises out of your breach of this Agreement, negligence, and/or violation of law. Woosh agrees to indemnify and hold you harmless, and your members, managers, directors, officers, employees, agents and representatives, and their respective successors and assigns (each, a “Marketer Indemnified Party”), from and against all claims, expenses and liability arising out of any personal injury, property damage or other damage, claim, or loss sustained by the Marketer Indemnified Party, including, without limitation, all of the costs and expenses (including reasonable attorneys' fees) related to the same, if such damage, claim or loss arises out of Woosh’s breach of this Agreement, negligence, and/or violation of law.
13. Limitation of Liability. You agree and acknowledge that in no event shall Woosh be liable to you or any third party for consequential, indirect, incidental, special exemplary, or punitive damages, lost profits, or diminution in value arising out of, relating to this Agreement regardless of (a) whether such damages were foreseeable; (b) whether Woosh advised of the possibility such damages, and (c) the legal or equitable theory (contract, tort, or otherwise) upon which the claim is based.
14. Assignment. You may not assign this Agreement without Woosh’s prior written consent.
15. Successors and Assigns. All the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the respective heirs, beneficiaries, personal representatives, successors and assigns of the parties to this Agreement.
16. Entire Agreement. This Agreement contains all the terms of the agreement between the parties with respect to its subject matter and may be amended only by a writing signed by both of the parties to this Agreement. This Agreement supersedes any prior agreements or understandings between the parties regarding your services to Woosh.
17. Severability. The unenforceability of any provision of this Agreement shall not affect the enforceability of the remaining provisions of this Agreement. If any provision of this Agreement is found unenforceable or invalid for any reason, that provision shall be deemed amended in such minimal manner so as to make the provision valid and enforceable.
18. Notices. All notices shall be in writing and shall be deemed given when personally delivered or when deposited in the United States mail or other comparable mail service, postage prepaid, addressed to the party at its address set forth above.
19. No Waiver. No waiver of a breach of this Agreement shall be deemed a waiver of any other breach of the same or any other provision of this Agreement.
20. Governing Law; Arbitration. All matters regarding this Agreement, including, without limitation, the validity, enforceability, or interpretation of this Agreement, shall be exclusively governed by the substantive laws of the State of Michigan. Any dispute between the parties shall be settled by binding arbitration in Kent County, Michigan in accordance with the rules then prevailing of the American Arbitration Association, and judgment upon the award rendered may be entered in any court having jurisdiction thereof, with no right of appeal therefrom.
