Dermaesthetics

DERMAESTHETICS BEVERLY HILLS FORMULA, INC. WEBSITE AFFILIATE AGREEMENT

This Website Affiliate Agreement (the “Agreement”) is between Dermaesthetics Beverly Hills, Inc., (the "Advertiser") and You, (the "Affiliate"), and is effective as of the date indicated in the Affiliate’s signature block below (the “Effective Date”). The Advertiser is engaged in the business of sale of consumer goods, including, but not limited to personal care products, and cosmetics. The Advertiser offers an affiliate marketing program (the “Affiliate Program”) whereby it engages affiliates to promote Advertiser’s website dermaestheticsusa.com (the "Advertiser Website") and the products and services available for purchase on the Advertiser Website (the "Advertiser Products"). The Affiliate owns and operates one or more websites that are accessible to the public (the "Affiliate Website"), and wishes to participate in the Affiliate Program and to direct users of the Affiliate Website to the Advertiser Website using a unique URL (an "Affiliate Link"). The Advertiser is willing to admit Affiliate into the Affiliate Program pursuant to the terms and conditions set forth in this Agreement and to provide compensation as described herein to the Affiliate for purchases of certain Advertiser Products made via the Advertiser Website by customers of the Affiliate who were directed to the Advertiser Website using the Affiliate Link (the "Affiliate Customers"). The parties therefore agree as follows: 1. RESPONSIBILITIES. a) Of the Affiliate. The Affiliate shall: i. display the Affiliate Link in a manner that does not, in Advertiser’s sole discretion, reflect adversely on the Advertiser or mislead visitors; ii. use reasonable efforts to ensure the Affiliate Link works on the Affiliate Website, and that any visitor who clicks on the Affiliate Link will be connected to the Advertiser Website; iii. refer new, unique and, legitimate customers (i.e., customers not previously existing to the Advertiser) to the Advertiser Website via the Affiliate Link; iv. adhere to the following Keyword Buys & Commissions Policy a. “Keyword Buy" means any advertisement that appears when certain words are purchased and that matches a given keyword search query, and "Search Engine” means software that acts as a service by searching an index or database and that returns relevant matches based on information typed into a query. b. The Advertiser owns the rights to various registered and common law trademarks, including standard character and stylized versions of DERMAESTHETICS, DERMAESTHETICS BEVERLY HILS, DBH (collectively, “Advertiser Marks”). The Affiliate is prohibited from bidding on terms including, constituting, or related to the Advertiser Marks on all Search Engines, as this use constitutes a trademark infringement of the Advertiser Marks. This includes any variations, combinations, and lower-case variants of the Advertiser Marks, with or without the "www" prefix or ".com" suffix. The Advertiser will not pay a commission on any transactions derived from bidding on any keywords including or related to the Advertiser Marks, and the Advertiser may change these terms without notice to the Affiliate. c. The Affiliate may not make Keyword Buys that are confusingly similar to or a derivation of, the Advertiser’s name or Advertiser Marks, including any misspellings or "typo squatting" variants thereof. d. The Affiliate may not use links that automatically redirect the user to the Advertiser Website in the Affiliate's search ads. The Affiliate may not use the Advertiser Website (including all lower or uppercase variations) for any DISPLAY or DESTINATION URL listings used in paid search campaigns, or CLOAK or MASK the Advertiser Website URL in Search Engines. e. The Affiliate may not use the Advertiser Marks or any variation thereof in the Affiliate's search ad creative. B. Of the Advertiser. The Advertiser shall: i. display the Affiliate Link in a manner that does not reflect adversely on the Advertiser or mislead visitors; ii. provide reasonable assistance to the Affiliate to enable the Affiliate to post the Affiliate Link on the Affiliate Website; iii. provide to the Affiliate all the materials comprising and necessary to implement the Affiliate Link within 14 days of the Effective Date of this Agreement; and iv. maintain accurate records of the data used to determine the commissions earned by the Affiliate. 2. TERM AND TERMINATION. A. Term. i. This term of this Agreement will begin on the Effective Date and continue for an initial term of 6-month(s) (the "Initial Term”). Unless either party gives written notice to the other at least 30 days before the end of the Initial Term, this agreement will renew automatically for one additional 6-month term (the “Renewal Term”). The Initial Term and any Renewal Term shall collectively be referred to as the “Term” of this Agreement. After the Term, this Agreement may be extended by written agreement only. B. Termination Procedures. i. This agreement may be terminated: a. by either party, at any time, with or without cause, effective immediately b. by the Advertiser at any time and without prior notice, if the Affiliate violates the terms of this Agreement, improperly uses the Advertiser’s name, logo, graphics or any Advertiser Marks, or includes a link to the Advertiser Website in any form of unsolicited communication such as spam. C. Effects of Termination. i. Upon expiration or termination of this Agreement, all licenses granted under this Agreement will terminate unless they are expressly stated as surviving. The parties shall promptly remove all marks of the other party from any website that party controls. The Advertiser shall promptly pay the Affiliate any outstanding commissions owed to the Affiliate for services rendered before the effective date of the termination. 3. PAYMENT. A. Paid Order Fees. “Paid Order” means an order for which the Advertiser has received and processed payment, less the cost of returns and charge backs the Advertiser incurs on any of the Affiliate's referred customer orders. A Paid Order is void if: i. a Paid Order is incomplete; ii. a customer cancels or returns a Paid Order; iii. if a Paid Order has been made fraudulently or in an otherwise non-bona fide manner; iv. if a Paid Order is carried out by a person who is outside the area serviced by the Advertiser; or v. if the Advertiser is unable to ship goods to a customer in relation to a Paid Order. B. Calculation of Commission. The Advertiser shall pay the Affiliate 20% of net revenue generated by Paid Orders for the purchase of an Advertiser Product by Affiliate Customers (“Commissions”). C. Timing of Commissions. Commissions will be computed monthly as of the last day of each calendar month and shall be paid within 14 days following the end of the month. Any returns, refunds, charge backs, and fraudulent payments of Paid Orders will be deducted or withheld from the commission payment. D. Tracking Actions. All tracking and payment processing facilities in relation to the tracking and calculation of Commissions shall be provided by ShareASale. ShareASale shall aggregate payments due from Advertiser to the Affiliate and make payments to the Affiliate in accordance with each Paid Order. If tracking is disabled as a result of the Advertiser’s acts or omissions and the Advertiser continues to receive traffic from the Affiliate, then the Advertiser shall be obliged to pay Commissions on a fair and reasonable basis. 4. PROMOTIONAL MATERIALS. A. The Advertiser shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate Website (the “Promotional Materials”). Affiliate shall display the Promotional Materials on the Affiliate Website prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to the Advertiser Website, as specified by the Advertiser. B. The Affiliate’s use and display of the Promotional Materials on the Affiliate Website shall conform to the following terms, conditions and specifications: i. Affiliate may not use any graphic, textual or other materials to promote the Advertiser Website or Advertiser Products other than the Promotional Materials provided by the Advertiser, unless the Advertiser approved such other materials in writing prior to their display. ii. Affiliate may only use the Promotional Materials for the purpose of promoting the Advertiser Website and Advertiser Products, and for linking to the Advertiser Website. iii. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials provided by the Advertiser. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from the Advertiser for such alteration or modification. iv. The Promotional Materials will be used to link only to the Advertiser Website, to the specific web site page specified by the Advertiser. 5. LIMITED LICENSE TO USE INTELLECTUAL PROPERTY. A. License. Upon acceptance into the Affiliate Program, the Advertiser grants the Affiliate a limited, nonexclusive, non-transferable, non-sublicensable, revocable right to maintain the Affiliate Link on Affiliate Website to the Advertiser Website, in accordance with the terms of this Agreement, from which visitors of the Affiliate Website visitors can order Advertiser Products. The Advertiser also grants Affiliate a limited, nonexclusive, non-transferable, non-sublicensable, revocable license to use the Advertiser Marks solely as necessary for Affiliate to perform under this Agreement. All use of the Advertiser Marks by Affiliate share inure to the benefit of the Advertiser, and the Advertiser reserves all rights to the Advertiser Marks and may immediately revoke or adjust the Affiliate's license at any time on written notice. B. No Other Use. The Affiliate may not use the Advertiser Marks for any purpose or on any other media except as stated in this Agreement, and may not use any other Affiliate intellectual property, without the Advertiser’s express written approval. C. Modification. The Advertiser may submit written requests to modify or exclude any Advertiser Mark from the Affiliate Website and the Affiliate shall accommodate the request as soon as possible. D. Affiliate Intellectual Property. The Affiliate grants the Advertiser a nonexclusive license to utilize the Affiliate's trade names, trademarks, service marks, trade dress, logos, and other intellectual property used by the Affiliate in identifying its business (collectively, the "Affiliate IP”) and the Affiliate Website, including design, computer software, and other components, authorized by the Affiliate in writing (including by email), for the sole purpose of advertising, marketing, and promoting the Affiliate Program. At any time, the Affiliate may revoke or modify the licenses it has granted to the Advertiser and the Advertiser will use reasonable efforts to comply immediately with that revocation or modification. E. Representations About Affiliate IP. The Affiliate represents that: i. it has all necessary rights, licenses, permits, and clearances to use the Affiliate IP and to offer, sell, or license the goods and services offered through the Affiliate IP and this will not violate any applicable laws or regulations or any third-party rights; ii. the Affiliate IP does not violate or infringe any right of privacy, personality, or publicity, trade secrets, patents, copyrights, or trademarks under the laws of any governmental authority, domestic or foreign, or any other right of any third party; and iii. the Affiliate IP will not misdirect or mislead Internet users. 6. AFFILIATE RESTRICTIONS. A. The Affiliate shall not: i. use the trademarks, trade names, service marks, or logos of the Advertiser except the Advertiser Marks as expressly authorized by the Advertiser; ii. create, publish, distribute, or permit any written material that makes reference to the Advertiser without first obtaining its written consent except as may have been previously agreed between the parties. If the Affiliate uses any Advertiser content without permission, the Advertiser may, without limiting other forms of recourse, terminate the Affiliate's status in the Affiliate Program; iii. create, publish, distribute, or permit any advertising referencing the Advertiser, except as has been agreed in writing between the parties; iv. not use the Advertiser's name, logo, graphics or include a link to the Advertiser Website in any form of unsolicited communication, including unsolicited email (spam). The Affiliate must maintain strict compliance with the CAN-SPAM Act of 2003 and all amendments and modifications to that law; v. use the words "Official Site" in the Affiliate's ad creative or display URL. Affiliate may use the words "Official Site" in certain preapproved ad copy, if that ad copy is not associated with the following words or phrases: best prices, lowest rates, discount, discounted rates, cheap, or a certain percentage off the Advertiser's prices. vi. frame, minimize, remove, cause to create a new window, or otherwise inhibit the full and complete display of each website, mirror, cobranded or derivative website belonging to the Advertiser and its affiliates. vii. alter the Affiliate Link in any manner including modification of the design, color, format, specification, or content of the Link. viii. provide incentivized traffic, where offers with incentives or the appearance of incentives including points, lottery, coupon, contest entries or rewards, are used to generate revenue for Affiliate Customers. This includes placing misleading statements near the ad creative (e.g.,"you will win $100") unless such discount or incentive receives prior written approval by the Advertiser; ix. serve ad creative, or drive Affiliate Customers to this ad creative, using any downloadable applications or software (also called adware, pop-up/pop-under technologies, plug-ins, and other names as applicable), and serving ad creative that are not initiated by the affirmative action of the Affiliate Customer without the prior written approval of the Advertiser; and B. The Affiliate shall warrant that the Affiliate Website is written in English, is content based and not simply a list of links or advertisements, have a top-level domain name and does not promote or contain sexually explicit materials, promote violence or contain violent material, promote or contain libelous or defamatory materials, promote discrimination, or employ discriminatory practices, based on race, sex, religion, nationality, disability, sexual orientation or age. If the Affiliate violates any of these restrictions, the Advertiser may withhold commissions earned under this agreement, or immediately suspend or terminate the Affiliate's status as an affiliate. 7. ADVERTISER RIGHTS. A. Right to Monitor Affiliate Website. The Advertiser has the right, but not the duty, to monitor the Affiliate Website. The Advertiser shall notify the Affiliate of any modification that the Advertiser reasonably requests be made to the Affiliate Website in connection with posting the Affiliate Link. If the Affiliate fails to make that change, the Advertiser may terminate the agreement immediately on written notice. B. Right to Remove Link. The Advertiser may direct the Affiliate to remove, and the Affiliate shall remove, the Affiliate Link from the Affiliate Website at any time and for any reason. 3. MISCELLANEOUS. A. Governing Law; Attorneys’ Fees. Unless the parties mutually agree otherwise in writing, this Agreement shall be governed by the laws of the State of California and such state shall be the sole and exclusive forum or any disputes under this Agreement. A party that prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys' fees and costs. B. Notices. All notices under this Agreement must be in writing and addressed to the other party at its email address(es) set forth in the signature block below (or to such other address that the receiving party may designate from time to time in accordance with this Section). Email notice shall be deemed effective when sent, if sent during normal business hours of the recipient, and on the next business day, if sent outside normal business hours. If the sender has not received an email reply within 2 business days of sending the notice, the sender can resend such notice by mail to the address indicated in the first paragraph of this Agreement, and the notice will be deemed effective as of the date on which the initial email notice was sent. C. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited. D. Entire Agreement. This Agreement contains the entire agreement of the parties and any changes or modifications thereto must be in writing and signed by both parties. This Agreement constitutes the sole agreement between the Advertiser and the Affiliate regarding the Affiliate Program. E. Assignment. Affiliate shall not assign any rights, or delegate or subcontract any obligations, under this Agreement without the Advertiser’s prior written consent. Any assignment in violation of the foregoing shall be deemed null and void. The Advertiser may freely assign its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, this Agreement will inure to the benefit of, be binding on, and be enforceable against each of the parties and their respective permitted successors and assigns. F. Relationship of the Parties. Advertiser and Affiliate are independent contractors, and nothing in this Agreement will create any corporate, partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Neither party will have the authority to make or accept any offers or representations on the other party’s behalf. Both parties hereby agree not to make any statement, whether on their websites or otherwise, that contradicts anything in this section. The Affiliate hereby warrants that the information provided herein is true and correct, and the signatory below has the authority to enter into and bind Affiliate to this Agreement.