This AFFILIATE AGREEMENT (this “Agreement”), effective as of January 1st, 2021 (the “Effective Date”), is entered into by and between Cosmesis Skincare, Inc., d/b/a Goldfaden Skincare, a Delaware corporation with an address at 3816 Hollywood Boulevard, Hollywood, Florida 33021 (“Company”), and (“Affiliate”).
A. Company administers an affiliate program (the “Program”), and Affiliate desires to participate in the Program.
B. The parties desire to establish the terms and conditions under which Affiliate may participate in the Program.
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth in this Agreement, the parties agree as follows:
1. Exclusive Terms and Conditions. The parties intend for this Agreement to exclusively govern and control each of the parties’ respective rights and obligations regarding Affiliate’s participation in the Program, and Affiliate’s participation in the Program is strictly limited to acceptance of the terms and conditions in this Agreement. Without limiting the foregoing, any additional or different terms contained in any communication by Affiliate pertaining to the Program, or any attempt by Affiliate to modify, supersede, supplement, or otherwise alter this Agreement, will not modify this Agreement or be binding on the parties.
2. Marketing Materials. Company will provide certain materials, such as referral links, banner advertisements and other marketing materials to Affiliate (collectively, “Marketing Materials”) to use on Affiliate’s website to market certain products of Company (collectively, “Products”). Affiliate may not alter the Marketing Materials or use any other materials in connection with the Program or marketing of the Products without Company’s prior written consent. The Marketing Materials may include a link only to Company’s website and not to any third-party website.
3. Advertisements. Affiliate shall: (a) in order to prevent derogation or dilution of Company’s trademark rights, and to safeguard Company’s business goodwill, obtain Company’s final approval of all content displayed on Affiliate’s website in connection with the Marketing Materials, and shall observe all directions and instructions given to it by Company in relation to the marketing, advertisement, and promotion of the Products or use of any and all Marketing Materials and trademarks owned by or licensed to Company; (b) market, advertise, and promote the Products and conduct business in a manner that reflects favorably at all times on, and otherwise does not disparage, the Products and the name, goodwill, and reputation of Company; and (c) not use any of Company’s intellectual property to create derivative works or to use any confusingly similar variation of Company’s intellectual property without Company’s express prior written permission, which includes a restriction on using Company’s intellectual property in any domain or website name, in any keywords or advertising, in any metatags or code, or in any way that is likely to cause consumer confusion.
4. Referral Tracking. Company will track all referrals that visit Company’s website with cookies that have a 30-day expiration (each a “Cookie”).
5. Referral Award. For each new customer that the Affiliate refers to Company using the Cookie described above who purchases a Product(s) from Company (“Referred Customer”), Company will make a one-time payment to Affiliate in the amount of (a) 10% of the actual sales revenue received by Company from the Referred Customer for the Product(s) purchased (sales revenue to be calculated before any sales tax, VAT, duties, or similar charges), (each an “Award”) in the event that all of the following are satisfied: (i) the referral is a new Customer of Company (meaning that prior to the referral from the Affiliate, the customer has not previously visited Company’s website or purchased from Company), (ii) the referral clicked through a link connected to Marketing Materials on Affiliate’s website and visited Company’s website with respect to a particular Product (the “Eligible Product”); (iii) the referral purchased the Eligible Product prior to the applicable Cookie expiring; (iv) Company received payment in full for the Eligible Product; (v) payment for the Eligible Product is not refunded, reversed, or charged back within 60 days from the date the Eligible Product is fulfilled by Company (the “Conditional Period”); (vi) the Eligible Product is not returned to Company prior to the expiration of the Conditional Period; (vii) Affiliate has not defaulted under this Agreement prior to payment of the Award; (viii) this Agreement is not expired or terminated prior to payment of the Award, (ix) the Affiliate has not previously received a Referral Award for the Referred Customer (collectively, “Award Requirements”). In the event an Eligible Product is exchanged for a different Product prior to the expiration of the Conditional Period (the “Exchanged Product”), then, for the purposes of determining if the Award Requirements are satisfied, “Eligible Product” will mean the “Exchanged Product” and the “Conditional Period” will begin on the date the Exchanged Product is fulfilled by Company.
6. Payment of the Award. The Award will be paid within 30 days after all of the Award Requirements are satisfied. Awards will be paid in United States dollars. Affiliate must provide sufficient payment information in order to receive an Award. All Awards that remain unpaid for a period of 60 days due to Affiliate’s failure to provide sufficient payment information will be forfeited. The method of payment shall be by check in USD, or an alternate payment method in Company’s sole discretion. Determination of satisfaction of the Award Requirements will be made by Company in its sole discretion, and any determination by Company regarding satisfaction of the Award Requirements and Award eligibility or amounts shall be final.
7. Ineligibility and Loss of Award. Notwithstanding anything contained in this Agreement to the contrary, Affiliate will be ineligible to receive any Award, and any Award otherwise earned under this Agreement shall be automatically forfeited by Affiliate, upon the occurrence of any of the following: (a) Affiliate alters any Marketing Materials or Marketing Materials link to any third party website; (b) Affiliate alters any Cookie; (c) Affiliate, directly or indirectly (individually or in connection with third parties), uses fraudulent, illegal, deceptive or unethical acts, or (d) Affiliate violates any terms of this Agreement or its obligations under this Agreement.
8. Compliance. Affiliate will comply at all times with all of the terms and conditions of this Agreement. Affiliate will comply at all times with all applicable local, state, federal, and international laws, rules, and regulations, including, but not limited to, all disclaimer and disclosure requirements of the Federal Trade Commission. Affiliate represents and warrants that it will at all times operate its website in a professional manner, and shall maintain reasonable and appropriate technical and organizational measures to keep its website, advertisements, and any other IT systems free of any viruses, worms, malware, trojans, or any other malicious software code.
9. Limited License; Intellectual Property Ownership. Company grants to Affiliate a limited, nonexclusive, nontransferable, revocable, nonsublicensable license to use the Marketing Materials only in connection with the Program (“Limited License”). The Limited License will immediately expire or terminate (without any further action of either party) upon the expiration or termination of this Agreement. Except for the Limited License, Company retains its entire right, title, and interest, in and to all of its intellectual property rights, including, without limitation, all patent rights, trade secrets, trademarks, tradenames, and copyrights. Other than in connection with the Limited License, Affiliate shall not use the name or logo of Company, or any abbreviation or adaptation thereof, in any advertising, trade display, or published statement or press release, or for any other commercial purpose, without Company’s prior written consent. Affiliate’s unauthorized use of any of Company’s intellectual property shall constitute unlawful infringement. Company reserves all rights, including the right to pursue an infringement suit against Affiliate in federal court, where civil liability may include monetary damages or legal fees and costs. Affiliate hereby grants to Company a worldwide, royalty-free, non-exclusive license to use Affiliate’s name, trademarks, and service marks if applicable and other business intellectual property to advertise the Program.
10. Keyword Search Terms. Affiliate may not bid on Company’s keyword search terms on any online property without the prior written consent of Company. For the avoidance of doubt, Affiliate may not bid on search terms containing “Cosmesis,” “Goldfaden,” or search terms including any of Company’s product names, variations, or confusingly similar versions thereof. Further, Affiliate may not use images of any of Company’s products to bid on any search engine product listing ads or other similar advertisements.
11. Term. The term of this Agreement shall commence on the Effective Date and end on the date this Agreement is terminated as set forth below (the “Term”).
12. Termination. This Agreement may be terminated by: (a) Company immediately at any time for any reason; or (b) Affiliate upon thirty (30) days’ prior written notice for any reason.
13. Confidential Information. All non-public, confidential and proprietary information of Company, however disclosed, is confidential, and may be used by Affiliate solely for the use of performing under this Agreement and may not be disclosed to any third party or copied unless previously authorized by Company in writing. For the avoidance of doubt, this Agreement and any information pertaining to Company’s customers, suppliers, and/or business operations shall be considered Confidential Information. Upon Company’s request, Affiliate shall promptly return or destroy all documents and other materials containing Company’s Confidential Information. Affiliate represents and warrants that it will use commercially reasonable technical and organizational measures to protect the confidentiality and privacy of all Company Confidential Information, including information regarding Company’s customers.
14. No Company Representations or Warranties. Affiliate acknowledges that the Program is provided on an “AS IS” basis. Neither Company nor any of its officers, directors, employees, or agents (collectively, “Company’s Personnel”) make any representation or warranty, expressed or implied, with respect to the Program. To the greatest extent permitted by applicable law, neither Company nor Company’s Personnel shall be liable to Affiliate or any of Affiliate’s representatives relating to or resulting from Affiliate’s participation in the Program.
15. Limitation of Liability. Notwithstanding anything to the contrary in this Agreement, to the greatest extent permitted by law, in no event shall Company be liable for any consequential, indirect, incidental, special, exemplary, punitive, or enhanced damages, lost profits or revenues or diminution in value, arising out of, or relating to, the Program or this Agreement, regardless of (a) whether such damages were foreseeable, (b) whether or not Company was advised of the possibility of such damages, (c) the legal or equitable theory (contract, tort or otherwise) upon which the claim is based, and (d) the failure of any agreed or other remedy of its essential purpose. To the greatest extent permitted by law, in no event shall Company’s aggregate liability arising out of or related to the Program or this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total amount paid by Company to Affiliate under this Agreement in the twelve (12) months immediately preceding the date of such claim. Some states and countries do not allow the exclusion of implied warranties or the exclusion or limitation of incidental and consequential damages, so the above limitations may not apply to you.
16. Indemnification. To the greatest extent permitted by law, Affiliate shall indemnify, defend, and hold harmless Company, its affiliates and their respective equity holders, directors, officers, employees, agents, affiliates, successors, and assigns against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, fees, or expenses of whatever kind (including reasonable attorneys’ fees), and the costs of enforcing any right to indemnification under this Agreement, in any way relating to a claim arising out of or occurring in connection with Affiliate’s (a) business or operations in connection with this Agreement, (b) participation in the Program, (c) breach of this Agreement, or (d) violation of applicable laws, rules, or regulations in connection with this Agreement. Affiliate shall not enter into any settlement without Company’s prior written consent.
17. Injunctive Relief. Affiliate acknowledges and agrees that money damages may not be a sufficient remedy for any breach of either Section 9 or Section 13 by Affiliate and that Company will be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach (or threatened breach), in each case, without the necessity of posting a bond or other security or proving damages. Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement but shall be in addition to all other remedies available at law or in equity.
18. No Other Obligation. The parties agree that neither party will be under any legal obligation of any kind whatsoever, or otherwise be obligated to enter into any business or contractual relationship, investment, or transaction, by virtue of this Agreement, except for the matters specifically agreed to in this Agreement.
19. Tax. Company may collect sales tax, as required by applicable laws.
20. Independent Contractor. Each party will be considered to be an independent contractor under this Agreement and the Program. The relationship between the parties shall not be construed to be that of employer and employee, nor to constitute a partnership, joint venture or agency of any kind. Neither party shall have the right to bind the other party to any contract or other commitment. Affiliate shall provide a complete, signed W-9, W-8, or W-8BEN for tax identification purposes, and Company will issue a Form 1099 to Affiliate as required by law.
21. Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida, without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated under this Agreement shall be instituted exclusively in the federal or state courts located in San Broward County, Florida.
22. Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement shall be in writing and shall be deemed to have been given: (a) when delivered by hand; (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (with confirmation of transmission) if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by a party from time to time in accordance with this Section).
23. Entire Agreement. This Agreement constitutes the sole and entire agreement of the parties with respect to the subject matter contained in this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified or supplemented in a writing signed by Company.
24. Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. Waivers. No waiver by Company of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by Company. No waiver by Company shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver.
26. Assignment; Successors and Assigns. Affiliate may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Except as provided for in Section 16, this Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Company may freely assign its rights or delegate any of its obligations under this Agreement at any time and for any reason.
27. Survival. Termination or expiration of this Agreement does not affect any rights or obligations under this Agreement that by their nature or intent survive the termination or expiration of this Agreement.
28. Counterparts. This Agreement may be executed in any number of counterparts and exchanged by facsimile, PDF, or other electronic transmission, each of which shall be an original as against either party whose signature appears thereon and all of which together shall constitute one and the same instrument.
