EMMA AFFILIATE PROGRAM TERMS (AWIN)
These Emma Affiliate Program Terms (Awin) (these “Program Terms”) are between a person or business participating in the Emma Affiliate Program through the Awin network (“Affiliate” or “you”) on the one hand, and Enclave LLC and Konscious LLC (“Company” or “we”) on the other hand, and govern Affiliate’s participation in the Emma Affiliate Program (the “Affiliate Program”). These Program Terms are in addition to the binding terms between you and the Awin network. These Program Terms are specific to your engagement with the Company and your marketing and promotion of Emma products (“Emma Products”).
1. Term; Termination; Changes to Program Terms.
These Program Terms are effective upon the Company’s acceptance of Affiliate’s Affiliate Program application and will end when terminated by either party. Either you or Company may terminate these Program Terms and your participation in the Affiliate Program at any time and for any reason or no reason, effective upon the other party’s receipt of notice of termination. Upon any termination of these Program Terms, all rights granted to you in these Program Terms will terminate and you will cease all use of Emma links. We may update these Program Terms at any time with or without prior notice to you. You are responsible for checking these Program Terms and you agree to comply with Program Terms as updated.
2. Application and Enrollment in the Program.
You must submit a completed Affiliate Program application via the Affiliate Program’s signup funnel to begin the enrollment process (“Application”). We will evaluate your Application and notify you of your acceptance or rejection within a reasonable timeframe. We may reject your Application if, in our sole discretion, we determine for any reason that your site or marketing practices do not comply with the Program Terms or are otherwise unsuitable for the Program. As part of the Application, you must disclose all web properties and social media profiles on which you desire to place hyperlinks to an Emma Web site (“Emma Links”) or otherwise promote Emma Products. You represent and warrant that: (i) the information submitted in the Application is truthful and accurate; (ii) the person submitting the Application is at least 18 years old; (iii) in the event you are an entity, the person submitting the Application has the full right, power and authority to enter into these Program Terms on behalf of such entity; and (iv) the agreement to these Program Terms by such person, and the performance by you of your obligations and duties hereunder, do not and will not violate any agreement to which you are a party or by which you are otherwise bound.
3. Responsibility for Your Web Site.
You will be solely responsible for the development, operation, and maintenance of, and all costs associated with, your Web site, and for the accuracy, timeliness and appropriateness of all content posted on your Web site and your social media channels. We disclaim all liability for these matters. You agree that your Web site and social media channels shall comply with all restrictions and requirements set forth in these Program Terms and you understand and agree that Company may, at its sole discretion, correct or reverse commissions and/or terminate you from the Affiliate Program entirely for any failure to comply with such restrictions and requirements or any other provision of these Program Terms. Affiliate must conspicuously post a privacy notice/policy on all Affiliate Web site(s). Affiliate's privacy notice/policy must fully, accurately, and concisely describe: (i) what personal data Affiliate collects; (ii) the purpose of collection of personal data; (iii) how Affiliate uses and shares that personal data; and (iv) that other parties (i.e., Company, ad networks, analytics providers, etc.) may, if applicable, collect personal data about a user’s online activities over time and across different websites when the user uses the Affiliate Web site(s).
4. Web Site Requirements.
In order to qualify for the Affiliate Program and receive commissions, your Web site must:
a. Be relevant and professional;
b. Have a professional look-and-feel compatible with the Emma Product;
c. Employ logical navigation that is not confusing or misleading to the user;
d. Not contain broken images or links;
e. Not include areas that are under construction;
f. Not display or provide content that is offensive to the communities served by your Web site, including but not limited to blatant expressions of bigotry, prejudice, racism, hatred or excessive profanity or post any obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable content, or that contains pornographic material, graphics or content perceived as offensive, defamatory, libelous, obscene, abusive, inflammatory or controversial, including that of a sexual, violent or political nature (including nudity in content or ads);
g. Not feature or promote discrimination of any type (i.e., by imposing any race, sex, religion, nationality, disability, sexual orientation, age-based criteria, activities involving unusual or extreme risk to life or the environment, or illegal or criminal activities;
h. Not sell, promote, or advertise in any manner (including through the use of hyperlinks): any products or services that are unlawful in the location at which the content is posted or received, gambling activities, alcohol, tobacco, or any illegal or controlled substance;
i. Not violate the trademark, copyright, patent, or other intellectual property rights of Company or any third party;
j. Not post any content that holds Company or the Emma Product open to public scorn or ridicule;
k. Not introduce viruses, worms, harmful code and/or Trojan horses on the Internet;
l. Not use tracking technology that enables correlation of tracking data with personally identifiable information collected independently by Affiliate from actual or prospective Emma customers;
m. Not post or disclose any personally identifying information or private information of any third parties without obtaining their consent (or their parents’ consent in case of a minor) in compliance with applicable laws, and otherwise comply with your obligations under applicable data protection laws, including without limitation the General Data Protection Regulation 2016/679 (GDPR), the California Consumer Privacy Act of 2018, as amended (CCPA), and all other U.S. state privacy and data protection laws;
n. Not require a password or contain other means of restricted access to your site. If you have a member-based site that requires login you agree to provide Company or its agents with a test login prior to being approved to the Affiliate Program.
5. Prohibited SEM Activities
Use of any and all “Emma”-branded search terms, Emma trademarks, or any branded URLs (derivatives and misspellings included) is prohibited, without direct explicit consent of Company. Participation in Emma-brand bidding is not allowed within the Affiliate Program. You may not bid on competitor’s branded terms and direct resulting traffic to Emma-branded sites. This includes any and all combinations, variations, misspellings or misspelling variations. Further, use of keywords or copy containing terms that might reflect negatively on the Company or the Emma brand, e.g. ‘cheap’, should not be used. If you wish to explore paid ads with the Emma brand, you must first reach out to the Emma affiliate management team and obtain approval. Direct linking is not allowed – this includes any and all Emma trademarks, as well as misspellings or any variations thereof. The term “Official Site" cannot appear in any ad titles or descriptions. The use of any and all Emma trademarks within ad titles of descriptions is prohibited.
6. Coupons and Promotional Codes.
When promoting Emma, you may only use coupons and promotional codes that are provided exclusively through the Affiliate Program. Affiliate can find all coupon codes through the Awin network database. Affiliate may not use misleading text, images, or links that convey or imply any deal that is not explicitly authorized. Use of exclusive coupon codes by unauthorized affiliates will result in voided transactions. User submitted coupon codes from other marketing channels are prohibited from use by you. We have the right to void commissions for those sales that violate this paragraph. Expired coupons and deals must be removed or clearly marked as expired immediately. We monitor coupon codes for violations regularly. You may only use logos, banners and images provided through the Awin network interface. Contact the affiliate management team before using any images from a Company website or social media channels. We reserve the right to reverse transactions due to order cancellations, duplicate tracking, returns, credit card fraud, dispute charges, or violations of these Program Terms.
7. Chargebacks.
Affiliate will not be entitled to payment of a fee on any transaction resulting in a customer-initiated refund, reversal, or credit card chargeback or on any transaction where a refund is issued due to fraud (a “Chargeback”). In the event Affiliate is paid a fee on any transaction and a Chargeback is subsequently made, the fee amount previously paid to Affiliate shall be deducted from future payments owing to Affiliate.
8. FTC Compliance.
You must disclose your affiliate relationship on any promotion for Emma Products, in compliance with all applicable laws, including without limitation the Federal Trade Commission Act, and all FTC rules. This includes but is not limited to disclosures on blog posts, videos, emails, social media and website pages. Your audience must understand you could earn commissions if they click your links. All disclosure statements should be clear and concise, stating that the owner of Emma is compensating you for your review or endorsement. If you received an Emma Product (e.g. supplement) for free for a review, this also must be clearly stated in your disclosure. We reserve the right to audit your site for compliance with this paragraph and we may remove you from the Affiliate Program and decline to pay commissions if we determine you have violated these Program Terms. For more information and suggestions about how to comply, please reach out to the Emma affiliate management team.
9. Limited License to Use Emma Links.
Solely for as long as these Program Terms are effective and you remain an Affiliate within the Affiliate Program, we grant you a limited, nonexclusive, non-sublicensable, non-transferable, revocable license to: (i) access designated Emma Web sites through the Emma Links solely in accordance with the Program Terms; (ii) use Emma logos, trade names, trademarks, images, messages and similar identifying material made available by us to you (the "Licensed Materials"), for the sole purpose of promoting the Emma Products (associated with the Emma Links that are accessible through the Awin console) to assist in generating online transactions, and for identifying you as a participant in the Affiliate Program. You may not modify the Licensed Materials or any associated code (e.g. HTML) in any way. Except as expressly granted in these Program Terms, you shall have no other rights of any kind in regards to the Emma Web sites, Emma Products or services, the Emma campaigns, Emma images, messages, codes, trade names and trademarks, and all other intellectual property of Emma. You acknowledge that all use of the Emma trademarks and Emma Links by you inures solely to the benefit of Emma. Under no circumstances will anything in these Program Terms be construed as granting by implication, or otherwise, a license to any of Emma intellectual property or proprietary technology other than the use of the Licensed Materials, code and the linkage to the Emma Web site, in accordance with these Program Terms. You will promptly remove any outdated Emma Links or immediately upon our request.
10. Indemnification.
Affiliate agrees to indemnify, defend Company, its officers, directors, employees, and agents (“Company Indemnitees”) from any third-party claims made or brought against any of the Company Indemnitees, and indemnify and hold Company Indemnitees harmless from all liabilities, damages, costs, penalties, expenses, including reasonable attorneys’ fees suffered or incurred by Company Indemnitees, arising from or related to: (a) Affiliate’s violation of any provision of these Program Terms; (b) any false or inaccurate representation or warranty of Affiliate made herein; (c) Affiliate’s violation of any applicable law; and (d) Affiliate’s infringement or misappropriation of the intellectual property rights or other rights of any third party. The foregoing indemnification obligations will survive any termination of these Program Terms and any termination of Affiliate’s participation in the Affiliate Program.
11. Warranty Disclaimer.
ALL COMPANY INFORMATION, CONTENT, AND MATERIALS PROVIDED TO AFFILIATE IN CONNECTION WITH THIS THESE PROGRAM TERMS AND/OR THE AFFILIATE PROGRAM ARE PROVIDED ON AN ‘AS IS’ BASIS WITH NO WARRANTY. AFFILIATE ACKNOWLEDGES THAT IT PARTICIPATES IN THE AFFILIATE PROGRAM AT AFFILIATE’S OWN RISK. UNLESS OTHERWISE STATED IN THESE PROGRAM TERMS AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE AFFILIATE PROGRAM, THESE PROGRAM TERMS, THE EMMA PRODUCTS, AND ALL COMPANY INFORMATION, CONTENT, AND MATERIALS PROVIDED TO AFFILIATE, INCLUDING BUT NOT LIMITED, TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ON ANY COMPANY WEB SITE OR PROVIDED TO AFFILIATE IS ACCURATE, COMPLETE, OR CURRENT, OR THAT OPERATION OF ANY COMPANY WEB SITE WILL BE UNINTERRUPTED. COMPANY DOES NOT REPRESENT, WARRANT, OR MAKE ANY SPECIFIC OR IMPLIED PROMISES AS TO THE SUCCESS OR OUTCOME OF ANY CAMPAIGNS.
12. LIMITATIONS OF LIABILITY.
COMPANY WILL NOT BE LIABLE TO AFFILIATE WITH RESPECT TO THE SUBJECT MATTER OF THESE PROGRAM TERMS OR AFFILIATE’S PARTICIPATION IN THE AFFILIATE PROGRAM, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE PROGRAM TERMS, IN NO EVENT SHALL COMPANY’S CUMULATIVE LIABILITY TO AFFILIATE ARISING OUT OF OR RELATED TO THESE PROGRAM TERMS, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSION FEES PAID OR PAYABLE TO AFFILIATE UNDER THESE PROGRAM TERMS. THESE LIMITATIONS OF LIABILITY SHALL SURVIVE ANY TERMINATION OF THE AGREEMENT.
