Ethique
Program Terms
ETHIQUE AFFILIATE PROGRAM TERMS
BACKGROUND
A Ethique is a regenerative beauty brand, manufacturing and distributing cosmetics, including solid bars of shampoo, conditioner and facial cleanser, that put planet and people first. Ethique operates the Ethique URLs for the purpose of marketing and selling its sustainable, zero-waste cosmetic products to its customers across the globe.
B The Affiliate is a publisher, also known as an affiliate, participating in the ShareASale network, promoting products and services to its audience. Ethique considers that the Affiliate's values and profile are aligned with Ethique's brand and ethos.
C The Affiliate wishes to become a member of Ethique's affiliate program in accordance with these terms to promote Ethique and the Ethique products.
OPERATIVE PROVISIONS
1 DEFINITIONS AND INTERPRETATION
Definitions
1.1 In these terms the following definitions apply:
Advertising Standards means any applicable advertising laws, regulations or standards, data laws relating to advertising (including the Children's Online Privacy Protection Act), any generally accepted self-regulatory codes of practice, and any related guidance or best practice advice, including those notified by Ethique to the Affiliate from time to time.
Affiliate means the "Publisher" (as defined in the ShareASale Publisher Terms) who has accepted these terms to participate in Ethique's affiliate marketing program.
Affiliate Account has the meaning given to it in clause 5.8.
Affiliate Code means a discount code unique to the Affiliate, which, subject to the Affiliate Code Terms, entitles Customers to a specified discount on purchases made from an Ethique URL.
Affiliate Code Terms means the terms and conditions on which the Affiliate Codes are offered, as notified to the Affiliate by Ethique from time to time.
Affiliate Link means a hyperlink from an Affiliate Platform to an Ethique URL.
Affiliate Platform means a website, application or service operated by the Affiliate to market advertisers or their products as an affiliate.
Authorised User Account has the meaning given to it in the ShareASale Publisher Terms.
Commission has the meaning given to it in the ShareASale Merchant Terms.
Confidential Information means all information, know-how or material in any form, whether provided before or after the Effective Date, relating to, or confidential or proprietary to the provider or provided by the disclosing party which becomes known or is provided to the receiving party as a result of the course of dealings between them which is by its nature confidential, is designated by a party as confidential or which the recipient ought reasonably know is confidential, including any non-public, commercially sensitive or secret information relating to the disclosing party's business, trade secrets, data, operations, customers, stakeholders, activities, planning, investigations, products, services, research and development and the contents of these terms, but does not include any information to the extent the receiving party can show the relevant information:
(a) is part of or legitimately enters the public domain;
(b) is already or becomes in the unrestricted possession of the receiving party without there having been any breach of a third party's obligations of confidentiality;
(c) has been independently developed by the receiving party (as evidenced by records in its possession);
(d) is not intended to be confidential as evidenced by the written agreement of the disclosing party; or
(e) legally must be disclosed, or is required to be disclosed pursuant to the listing rules of any applicable stock exchange.
Customer means a user who has clicked through to an Ethique URL using an Affiliate Link.
Ethique means Ethique Limited (company number 3152626) of PwC, 60 Cashel St, Level 4, PwC Building, Christchurch Central, City Centre, 8013, New Zealand.
Ethique Brand means any registered or unregistered Ethique trade marks, brand names, company names, key product names and any misspellings or mondegreens of the same, as set out in Schedule 2, together with any other trade marks, brand or product names Ethique notifies the Affiliate are Ethique Brands (and misspellings or mondegreens of the same).
Ethique Brand Guidelines means the guidelines for use of Ethique's trade marks, logo and branding as notified by Ethique to the Affiliate from time to time, the current version of which is set out in Schedule 1.
Effective Date means the date the Affiliate accepts these terms.
Ethique URLs means the Ethique website, app or service set out on the ShareASale Interface from time to time.
Insolvency Event in respect of a party, means any of the following circumstances:
(a) it enters into, or proposes, any arrangement, compromise or composition with creditors;
(b) it goes into liquidation or has a receiver, administrator, statutory manager or similar officer appointed (other than solely for the purpose of amalgamation or solvent reconstruction);
(c) it has an order made, resolution passed or other step taken against it by any person (other than a frivolous or vexatious step which is contested in good faith by appropriate proceedings) for its dissolution;
(d) it ceases to carry on business or threatens to cease trading in a normal manner;
(e) it is unable to pay its debts as they become due as defined by the Companies Act 1993 or as determined under the general law; or
(f) it is the subject of any other event, or any other proceedings are taken against it, in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events set out in paragraphs (a) to (e) of this definition.
Publisher Account has the meaning given to it in the ShareASale Publisher Terms.
Territory means the country set out in the ShareASale Interface from time to time.
Tracking Gap means the period set out on the ShareASale Interface, which is the amount of time allowed to elapse from a Customer's original click through to an Ethique URL using an Affiliate Link to the time of purchase of products from the Ethique URL, during which Ethique will be required to pay the Commission to ShareASale Inc for that purchase. If no Tracking Gap is specified on the ShareASale Interface, the Tracking Gap is 30 days.
Transaction means a purchase of any products offered for sale on an Ethique URL by a Customer where the purchase is completed within the Tracking Gap.
Services has the meaning given to it in clause 3.1.
ShareASale means the affiliate marketing network platform, ShareASale.
ShareASale Inc means ShareASale.com, Inc. of 15 Hubbard Street, Suite 500, Chicago IL 60654, company EIN number 364470129.
ShareASale Interface has the meaning given to "Interface" in the ShareASale Publisher Terms.
ShareASale Merchant Terms means ShareASale's standard merchant terms available at www.shareasale.com/info/.
ShareASale Publisher Terms means ShareASale's standard terms for publishers available at www.shareasale.com/info/.
Interpretation
1.2 In the interpretation of these terms, the following provisions apply unless the context otherwise requires:
1.2.1 Headings are inserted for convenience only and do not affect the interpretation of these terms.
1.2.2 If the day on which any act, matter or thing is to be done under these terms is not a business day, the act, matter or thing must be done on the next business day.
1.2.3 A reference in these terms to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision.
1.2.4 A reference in these terms to any document or agreement is to that document or agreement as amended, novated, supplemented or replaced.
1.2.5 A reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to these terms.
1.2.6 An expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency.
1.2.7 Where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning.
1.2.8 A word which indicates the singular also indicates the plural, a word which indicates the plural also indicates the singular, and a reference to any gender also indicates the other genders.
1.2.9 A reference to the word 'include' or 'including' is to be interpreted without limitation.
1.2.10 Any schedules and attachments form part of these terms.
2 INTERACTION WITH SHAREASALE TERMS
2.1 The parties acknowledge that:
2.1.1 these terms are 'Program Terms' as defined in the ShareASale Publisher Terms;
2.1.2 Ethique's affiliate marketing program is an Advertiser Program, as defined in the ShareASale Publisher Terms; and
2.1.3 Ethique is the Advertiser for the purposes of the ShareASale Publisher Terms and ShareASale Merchant Terms.
3 APPOINTMENT AS AFFILIATE
3.1 The Affiliate agrees to market and promote the Ethique URLs and Ethique's products and, where Ethique provides the Affiliate with an Affiliate Code, the Affiliate Codes (the Services) in accordance with these terms.
4 ETHIQUE'S OBLIGATIONS
4.1 Ethique shall provide the Affiliate with the Ethique URLs and may provide the Affiliate (at Ethique's discretion) with one or more Affiliate Codes, for use by the Affiliate in its performance of the Services.
4.2 Ethique shall be responsible for developing, operating and maintaining the Ethique URLs.
4.3 Subject to clause 4.4, Ethique shall provide Customers with access to and use of Ethique's URLs in accordance with Ethique's standard terms of use and other terms and conditions, policies and procedures from time to time.
4.4 Where Ethique has provided the Affiliate with an Affiliate Code, if a Customer enters an Affiliate Code during the checkout process, subject to the Affiliate Code Terms, Ethique will provide the Customer with the corresponding discount off the full purchase price for the products.
4.5 Ethique may at any time without notice to Affiliate:
4.5.1 change the name of an Ethique URL;
4.5.2 change the Ethique Brand Guidelines; and/or
4.5.3 target Ethique URLs at potential customers in such additional country or countries as it chooses, provided it maintains those Ethique URLs that are directed at the Territory.
4.6 These terms are non-exclusive and do not prevent or restrict Ethique from entering into similar agreements with third parties.
4.7 Ethique shall request prior approval for any use of any Affiliate trade mark, domain name, logo or branding that Ethique may wish to make, such approval not to be unreasonably withheld or delayed.
5 AFFILIATE'S OBLIGATIONS
General Affiliate obligations
5.1 The Affiliate shall ensure the Ethique URLs and the Ethique products for sale at the Ethique URLs are promoted on the Affiliate Platform throughout the term of these terms, and shall use reasonable endeavours to perform the Services so as to maximise the number of Transactions.
5.2 The Affiliate shall develop, operate and maintain the Affiliate Platform (including the Affiliate Links). The Affiliate is responsible for all materials that appear on the Affiliate Platform, other than any creative inventory provided to the Affiliate by Ethique. This includes compliance with the Ethique Brand Guidelines.
5.3 Where the Affiliate uses an advertising service such as Google Ads in the performance of the Services, the Affiliate must not bid on any keywords which are or include an Ethique Brand.
5.4 The Affiliate shall provide Ethique with:
5.4.1 all co-operation and assistance as is necessary for the proper performance of Ethique's obligations under these terms; and
5.4.2 all access to such information as reasonably requested by Ethique.
5.5 The Affiliate acknowledges that Ethique has explained clearly and fully to the Affiliate the nature and brand image of Ethique's products and agrees that it must not do or omit to do anything that may damage Ethique's brand or image or that of any of its products.
5.6 The Affiliate acknowledges and agrees that it has no authority to legally bind Ethique to any agreement with Customers, other users or anyone else and that it has not been appointed and is not the agent of Ethique, and must not hold itself out as Ethique's agent.
5.7 The Affiliate must:
5.7.1 comply with all applicable laws and regulations, including the Advertising Standards and applicable laws relating to data protection and privacy, in the performance of the Services and all of its obligations under these terms;
5.7.2 promptly pass on to Ethique any complaints the Affiliate receives about Ethique products or any questions or comments the Affiliate receives in relation to Ethique's products;
5.7.3 not make any unsubstantiated, misleading or deceptive representation about Ethique, the Ethique URLs or any of the Ethique products;
5.7.4 not make any pejorative statement relating to Ethique, any of Ethique's brand ambassadors or staff, or any Ethique products in public, online (including on social media), to the press or elsewhere;
5.7.5 where Ethique provides the Affiliate with an Affiliate Code, ensure that when the Affiliate is offering the Affiliate Code to users, it provides prospective customers with reasonably conspicuous notice of the Affiliate Code Terms as part of the promotion of the Affiliate Code;
5.7.6 perform the Services in accordance with Ethique's Brand Guidelines, the terms and conditions applicable to the Affiliate Platform (such as social media platform terms) and any applicable guidance notes and codes of practice issued by the regulator or advertising standards authority in the Affiliate's jurisdiction and any other Territory, and all other applicable guidance and regulations, as updated from time to time; and
5.7.7 not do anything which in Ethique's reasonable opinion would jeopardise the ability of the Affiliate to perform the Services or prejudice the goodwill or reputation of Ethique or its products.
Affiliate Account
5.8 The Affiliate shall at all times while these terms are in force, have a valid Publisher Account with ShareASale Inc. and one or more Authorized User Accounts (Affiliate Accounts). The Affiliate is responsible for the security of its Affiliate Accounts and hereby authorises any user of its Affiliate Accounts to act as its agent in relation to these terms including to contractually bind the Affiliate to these terms and all matters relating to these terms, whether by electronic, online, click-through, clickwrap or similar acceptance. Ethique shall be entitled to rely on the apparent authority of any person using an Affiliate Account.
Warranties and indemnity
5.9 The Affiliate warrants, represents and undertakes to Ethique that:
5.9.1 it will perform the Services with due care and skill;
5.9.2 any content used by the Affiliate in performing the Services, except to the extent that the content was provided by Ethique, will not:
(a) infringe any intellectual property rights of any third party; and
(b) contain any defamatory material nor breach any contract, law, duty of confidentiality, or data protection rights;
5.9.3 it has all necessary licences, approvals and consents to enter into these terms and perform the obligations under them; and
5.9.4 it has not entered into any agreement (such as an affiliate services agreement with a third-party advertiser) that:
(a) would cause the Affiliate to be in breach of these terms or impair the Affiliate's ability to perform the Services in accordance with these terms; or
(b) the Affiliate will be in breach of by performing the Services.
5.10 The Affiliate shall indemnify Ethique against all liabilities, costs, expenses, damages and losses suffered or incurred by Ethique arising out of or in connection with any third-party claims or any action, adjudication or decision against Ethique by any third party (including any regulatory body) arising (in whole or in part) out of any breach of clause 5.9.
6 CHARGES AND PAYMENT
6.1 Ethique will pay ShareASale the Commission in accordance with its obligations under the ShareASale Merchant Terms. The Affiliate acknowledges that Ethique is not required to make any payment directly to the Affiliate and agrees that the Commission for a Transaction is payable to the Affiliate by ShareASale Inc. in accordance with the ShareASale Publisher Terms. Unless otherwise set out on the ShareASale Interface, the Commission will only apply to Transactions (and not Leads, Clicks or Ad Impressions, as defined in the ShareASale Publisher Terms).
6.2 To avoid doubt, where a Customer enters an Affiliate Code during the checkout process but the Customer:
6.2.1 has not clicked through to the Ethique URL using an Affiliate Link; or
6.2.2 has clicked through to the Ethique URL using an Affiliate Link, but the Tracking Gap has expired,
no Commission will be payable in respect of that purchase.
7 PROPRIETARY RIGHTS
7.1 The Affiliate acknowledges and agrees that Ethique and its licensors own all intellectual property rights in the Ethique URLs, Ethique Brand and all Ethique products. Except as expressly stated herein, these terms do not grant the Affiliate any rights (including intellectual property rights) to Ethique's or its licensors' property. All such rights are reserved to Ethique.
8 CONFIDENTIALITY & PRIVACY
Confidentiality
8.1 A party receiving Confidential Information must (except with the disclosing party's prior written approval):
8.1.1 not use the disclosing party's Confidential Information (nor allow it to be used) for any purpose other than to perform its obligations under these terms;
8.1.2 not disclose the disclosing party's Confidential Information to anyone other than its:
(a) personnel who have a need-to-know for the purposes of fulfilling the receiving party's obligations under these terms; or
(b) professional advisors, upon obtaining a similar undertaking of confidentiality from such advisors;
8.1.3 treat, and will ensure that its relevant personnel treat, the disclosing party's Confidential Information with the utmost confidence;
8.1.4 without limiting the above obligations, exercise the same standard of care in the treatment and protection of the Confidential Information as it exercises for its own confidential information of a similar nature and sensitivity; and
8.1.5 on discovery of any breach of this clause by the receiving party or any person in possession of Confidential Information through the receiving party, immediately notify the disclosing party of such breach and co-operate with the disclosing party in every reasonable way to help the disclosing party regain possession of the Confidential Information and prevent its further unauthorised use or disclosure.
Privacy
8.2 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all applicable laws and regulations relating to the use of personal information, including the Privacy Act 2020 and any laws governing the sending of marketing material (including the Unsolicited Electronic Messages Act 2007).
9 LIMITATION OF LIABILITY
9.1 Except as expressly and specifically provided in these terms, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these terms.
9.2 Nothing in these terms limits or excludes any liability for (or remedy in respect of):
9.2.1 death or personal injury caused by a party's negligence;
9.2.2 fraud or fraudulent misrepresentation; or
9.2.3 any other liability that may not be restricted, or excluded, pursuant to applicable laws.
9.3 Subject to clauses 5.10 and 9.2, neither party will under any circumstances be liable to the other, whether in equity, contract, tort (including negligence), or breach of statutory duty, for any loss or damage which, although in the contemplation of the parties at the time they entered into these terms, is not a loss or damage which may fairly and reasonably be considered to arise naturally (that is, in the usual course of things) from the breach or other act of omission.
9.4 Subject to clause 8.2, Ethique's total aggregate liability to the Affiliate, whether in contract, tort (including negligence or breach of statutory duty) or otherwise, arising out of or in connection with these terms shall be limited to the Commissions paid by Ethique to ShareASale for the Services provided by the Affiliate under these terms during the 12 months preceding the date on which the claim arose.
10 TERM AND TERMINATION
10.1 These terms shall commence on the Effective Date and shall continue until terminated in accordance with this clause 10.
10.2 Ethique may terminate these terms at any time if it discontinues or withdraws, in whole or in part, its affiliate marketing program. Ethique will endeavour to give Affiliate as much notice of this termination as reasonably practicable, but any such termination will be without liability to Ethique.
10.3 These terms will automatically terminate if:
10.3.1 Ethique's agreement with ShareASale Inc. (on the ShareASale Merchant Terms) expires or is terminated; or
10.3.2 the Affiliate's agreement with ShareASale Inc. (the ShareASale Publisher Terms) expires or is terminated or the Affiliate otherwise ceases to participate in the Network (as defined in the ShareASale Publisher Terms). The Affiliate must notify Ethique as soon as possible if any of the events in this clause 10.3.2 has occurred or is likely to.
10.4 Without affecting any other right or remedy available to it, either party may terminate these terms with immediate effect by giving written notice to the other party if:
10.4.1 the other party commits a material breach of any provision of these terms and (if such a breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
10.4.2 the other party suffers an Insolvency Event;
10.4.3 if the other party is an incorporated body, there is a change of Control of the other party. 'Control' for these purposes means:
(a) holding the majority of the voting rights or share capital of the other party; or
(b) otherwise having the power to direct the management and policies of the other party.
10.5 Ethique may terminate these terms:
10.5.1 by giving 30 days' written notice to the Affiliate, for any reason; or
10.5.2 with immediate effect by giving written notice to the Affiliate, if the Affiliate does anything which in Ethique's reasonable opinion may prejudice the goodwill or reputation of Ethique or its products.
10.6 On termination of these terms for any reason:
10.6.1 all licences and benefits granted under these terms shall immediately terminate;
10.6.2 each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
10.6.3 the Affiliate must immediately remove any references to Ethique and the Ethique URLs from the Affiliate Platform including the Affiliate Links; and
10.6.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
11 INCORPORATION OF SHAREASALE PUBLISHER TERMS
11.1 The following provisions of the ShareASale Publisher Terms are incorporated by reference, as if references to 'ShareASale' were references to Ethique and references to 'Publisher' were references to 'Affiliate', and otherwise mutatis mutandis: 3.7 to 3.10, 4.1, 4.2, 4.6, 9.2.3, 9.2.4, 9.2.5, 9.2.8, 9.2.9 and 9.2.10.
11.2 The Affiliate acknowledges that, notwithstanding clause 8.1 of the ShareASale Publisher Terms, these terms create a binding contract between Ethique and the Affiliate.
12 NOTICES
Giving notices
12.1 Any notice, consent, approval or other communication (each a Notice) given to a party under these terms is only given if it is in writing and sent by email to that party at its email address and marked for the attention of the relevant department or officer (if any) set out below, or as notified in writing to the other party from time to time.
Ethique
Name: Ethique Limited
Email Address: bethia@ethique,com
Attention: Bethia Stone
Affiliate Email Address: The address under which the Affiliate Account is registered
Time notice is given
12.2 Any Notice is to be treated as given on the date and time the email is sent (as shown in a confirmation of the email generated by the sender's computer system which indicates that the email was sent to the email address of the recipient notified for the purpose of this clause and provided that the sender's computer system has not generated a record that the email has not been received).
12.3 However, if any Notice is given on a day that is not a business day, or after 5.00pm on a business day, in the place of the party to whom it is sent it is to be treated as having been given at the beginning of the next business day.
13 MISCELLANEOUS
Force Majeure
13.1 Neither party shall be in breach of these terms nor liable for delay in performing, or failure to perform, any of its obligations under these terms if such delay or failure result from events, circumstances or causes beyond its reasonable control.
Waivers
13.2 No failure or delay by a party to exercise any right or remedy provided under these terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Severability
13.3 Each provision of these terms is individually severable. If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction it is to be treated as being severed from these terms in the relevant jurisdiction, but the rest of these terms will not be affected. The legality, validity and enforceability of the provision in any other jurisdiction will not be affected.
Assignments and transfers
13.4 The Affiliate must not assign or transfer any of its rights or obligations under these terms without the prior written consent of Ethique.
No partnership or agency
13.5 Nothing in these terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
Execution of separate documents
13.6 These terms are properly executed if the Affiliate or any user acting through the Affiliate's Authorised Accounts accepts these terms.
Further acts
13.7 Each party must at its own expense promptly execute all documents and do or use reasonable endeavours to cause a third party to do all things that another party from time to time may reasonably request in order to give effect to, perfect or complete these terms and all transactions incidental to them.
Variation
13.8 Ethique may update these terms from time to time by posting the updated terms to ShareASale or on the ShareASale Interface, or otherwise in accordance with the ShareASale Publisher Terms.
Governing law and jurisdiction
13.9 These terms are governed by the law of New Zealand. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.
SCHEDULE 1
Ethique Brand Guidelines, accessible at https://ethique.sharepoint.com/:f:/s/EthiqueLimited/Egbdbg9peK9BoCY8z97XXDsBoQS7X1e-Llg4_hXTDiGRgQ?e=MRREzq using the password EthiqueAff
SCHEDULE 2
Ethique Brands
Brand Names
Ethique or Etique, Eteek, Etheek, Eteeq, Etheeq, or any other misspelling of the Ethique brand name
Slogans
Raising the bar or raizing the bar, razing the bar, or any other misspelling of the Ethique slogan 'raising the bar'
Clever little bars or any misspelling of the Ethique slogan 'clever little bars'
Rethink refillables or any misspelling of the Ethique slogan 'rethink refillables'
Product Trademarks
Heali Kiwi or heeli kiwi, heali keewi, heeli keewi, or any other misspellings of Heali Kiwi
Mintasy or mintazy, or any other misspelling of Mintasy
Professor Curl or professor kurl, or any other misspelling of Professor Curl
Curliosity or curliozity, or any other misspelling of Curliosity
Quench or qwench, kwench, or any other misspelling of Quench
St Clements or saint clements, st clemens, saint clemens, or any other misspelling of St Clements
Shampooch or any other misspelling of Shampooch
Pawfector or any other misspelling of Pawfector
Pinkalicious Or pinkalishious or pinkalisious, any other misspelling of Pinkalicious
Wonderbar Or Wunderbar, vonderbar, vunderbar, any other misspelling of Wonderbar
BACKGROUND
A Ethique is a regenerative beauty brand, manufacturing and distributing cosmetics, including solid bars of shampoo, conditioner and facial cleanser, that put planet and people first. Ethique operates the Ethique URLs for the purpose of marketing and selling its sustainable, zero-waste cosmetic products to its customers across the globe.
B The Affiliate is a publisher, also known as an affiliate, participating in the ShareASale network, promoting products and services to its audience. Ethique considers that the Affiliate's values and profile are aligned with Ethique's brand and ethos.
C The Affiliate wishes to become a member of Ethique's affiliate program in accordance with these terms to promote Ethique and the Ethique products.
OPERATIVE PROVISIONS
1 DEFINITIONS AND INTERPRETATION
Definitions
1.1 In these terms the following definitions apply:
Advertising Standards means any applicable advertising laws, regulations or standards, data laws relating to advertising (including the Children's Online Privacy Protection Act), any generally accepted self-regulatory codes of practice, and any related guidance or best practice advice, including those notified by Ethique to the Affiliate from time to time.
Affiliate means the "Publisher" (as defined in the ShareASale Publisher Terms) who has accepted these terms to participate in Ethique's affiliate marketing program.
Affiliate Account has the meaning given to it in clause 5.8.
Affiliate Code means a discount code unique to the Affiliate, which, subject to the Affiliate Code Terms, entitles Customers to a specified discount on purchases made from an Ethique URL.
Affiliate Code Terms means the terms and conditions on which the Affiliate Codes are offered, as notified to the Affiliate by Ethique from time to time.
Affiliate Link means a hyperlink from an Affiliate Platform to an Ethique URL.
Affiliate Platform means a website, application or service operated by the Affiliate to market advertisers or their products as an affiliate.
Authorised User Account has the meaning given to it in the ShareASale Publisher Terms.
Commission has the meaning given to it in the ShareASale Merchant Terms.
Confidential Information means all information, know-how or material in any form, whether provided before or after the Effective Date, relating to, or confidential or proprietary to the provider or provided by the disclosing party which becomes known or is provided to the receiving party as a result of the course of dealings between them which is by its nature confidential, is designated by a party as confidential or which the recipient ought reasonably know is confidential, including any non-public, commercially sensitive or secret information relating to the disclosing party's business, trade secrets, data, operations, customers, stakeholders, activities, planning, investigations, products, services, research and development and the contents of these terms, but does not include any information to the extent the receiving party can show the relevant information:
(a) is part of or legitimately enters the public domain;
(b) is already or becomes in the unrestricted possession of the receiving party without there having been any breach of a third party's obligations of confidentiality;
(c) has been independently developed by the receiving party (as evidenced by records in its possession);
(d) is not intended to be confidential as evidenced by the written agreement of the disclosing party; or
(e) legally must be disclosed, or is required to be disclosed pursuant to the listing rules of any applicable stock exchange.
Customer means a user who has clicked through to an Ethique URL using an Affiliate Link.
Ethique means Ethique Limited (company number 3152626) of PwC, 60 Cashel St, Level 4, PwC Building, Christchurch Central, City Centre, 8013, New Zealand.
Ethique Brand means any registered or unregistered Ethique trade marks, brand names, company names, key product names and any misspellings or mondegreens of the same, as set out in Schedule 2, together with any other trade marks, brand or product names Ethique notifies the Affiliate are Ethique Brands (and misspellings or mondegreens of the same).
Ethique Brand Guidelines means the guidelines for use of Ethique's trade marks, logo and branding as notified by Ethique to the Affiliate from time to time, the current version of which is set out in Schedule 1.
Effective Date means the date the Affiliate accepts these terms.
Ethique URLs means the Ethique website, app or service set out on the ShareASale Interface from time to time.
Insolvency Event in respect of a party, means any of the following circumstances:
(a) it enters into, or proposes, any arrangement, compromise or composition with creditors;
(b) it goes into liquidation or has a receiver, administrator, statutory manager or similar officer appointed (other than solely for the purpose of amalgamation or solvent reconstruction);
(c) it has an order made, resolution passed or other step taken against it by any person (other than a frivolous or vexatious step which is contested in good faith by appropriate proceedings) for its dissolution;
(d) it ceases to carry on business or threatens to cease trading in a normal manner;
(e) it is unable to pay its debts as they become due as defined by the Companies Act 1993 or as determined under the general law; or
(f) it is the subject of any other event, or any other proceedings are taken against it, in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events set out in paragraphs (a) to (e) of this definition.
Publisher Account has the meaning given to it in the ShareASale Publisher Terms.
Territory means the country set out in the ShareASale Interface from time to time.
Tracking Gap means the period set out on the ShareASale Interface, which is the amount of time allowed to elapse from a Customer's original click through to an Ethique URL using an Affiliate Link to the time of purchase of products from the Ethique URL, during which Ethique will be required to pay the Commission to ShareASale Inc for that purchase. If no Tracking Gap is specified on the ShareASale Interface, the Tracking Gap is 30 days.
Transaction means a purchase of any products offered for sale on an Ethique URL by a Customer where the purchase is completed within the Tracking Gap.
Services has the meaning given to it in clause 3.1.
ShareASale means the affiliate marketing network platform, ShareASale.
ShareASale Inc means ShareASale.com, Inc. of 15 Hubbard Street, Suite 500, Chicago IL 60654, company EIN number 364470129.
ShareASale Interface has the meaning given to "Interface" in the ShareASale Publisher Terms.
ShareASale Merchant Terms means ShareASale's standard merchant terms available at www.shareasale.com/info/.
ShareASale Publisher Terms means ShareASale's standard terms for publishers available at www.shareasale.com/info/.
Interpretation
1.2 In the interpretation of these terms, the following provisions apply unless the context otherwise requires:
1.2.1 Headings are inserted for convenience only and do not affect the interpretation of these terms.
1.2.2 If the day on which any act, matter or thing is to be done under these terms is not a business day, the act, matter or thing must be done on the next business day.
1.2.3 A reference in these terms to any law, legislation or legislative provision includes any statutory modification, amendment or re-enactment, and any subordinate legislation or regulations issued under that legislation or legislative provision.
1.2.4 A reference in these terms to any document or agreement is to that document or agreement as amended, novated, supplemented or replaced.
1.2.5 A reference to a clause, part, schedule or attachment is a reference to a clause, part, schedule or attachment of or to these terms.
1.2.6 An expression importing a natural person includes any company, trust, partnership, joint venture, association, body corporate or governmental agency.
1.2.7 Where a word or phrase is given a defined meaning, another part of speech or other grammatical form in respect of that word or phrase has a corresponding meaning.
1.2.8 A word which indicates the singular also indicates the plural, a word which indicates the plural also indicates the singular, and a reference to any gender also indicates the other genders.
1.2.9 A reference to the word 'include' or 'including' is to be interpreted without limitation.
1.2.10 Any schedules and attachments form part of these terms.
2 INTERACTION WITH SHAREASALE TERMS
2.1 The parties acknowledge that:
2.1.1 these terms are 'Program Terms' as defined in the ShareASale Publisher Terms;
2.1.2 Ethique's affiliate marketing program is an Advertiser Program, as defined in the ShareASale Publisher Terms; and
2.1.3 Ethique is the Advertiser for the purposes of the ShareASale Publisher Terms and ShareASale Merchant Terms.
3 APPOINTMENT AS AFFILIATE
3.1 The Affiliate agrees to market and promote the Ethique URLs and Ethique's products and, where Ethique provides the Affiliate with an Affiliate Code, the Affiliate Codes (the Services) in accordance with these terms.
4 ETHIQUE'S OBLIGATIONS
4.1 Ethique shall provide the Affiliate with the Ethique URLs and may provide the Affiliate (at Ethique's discretion) with one or more Affiliate Codes, for use by the Affiliate in its performance of the Services.
4.2 Ethique shall be responsible for developing, operating and maintaining the Ethique URLs.
4.3 Subject to clause 4.4, Ethique shall provide Customers with access to and use of Ethique's URLs in accordance with Ethique's standard terms of use and other terms and conditions, policies and procedures from time to time.
4.4 Where Ethique has provided the Affiliate with an Affiliate Code, if a Customer enters an Affiliate Code during the checkout process, subject to the Affiliate Code Terms, Ethique will provide the Customer with the corresponding discount off the full purchase price for the products.
4.5 Ethique may at any time without notice to Affiliate:
4.5.1 change the name of an Ethique URL;
4.5.2 change the Ethique Brand Guidelines; and/or
4.5.3 target Ethique URLs at potential customers in such additional country or countries as it chooses, provided it maintains those Ethique URLs that are directed at the Territory.
4.6 These terms are non-exclusive and do not prevent or restrict Ethique from entering into similar agreements with third parties.
4.7 Ethique shall request prior approval for any use of any Affiliate trade mark, domain name, logo or branding that Ethique may wish to make, such approval not to be unreasonably withheld or delayed.
5 AFFILIATE'S OBLIGATIONS
General Affiliate obligations
5.1 The Affiliate shall ensure the Ethique URLs and the Ethique products for sale at the Ethique URLs are promoted on the Affiliate Platform throughout the term of these terms, and shall use reasonable endeavours to perform the Services so as to maximise the number of Transactions.
5.2 The Affiliate shall develop, operate and maintain the Affiliate Platform (including the Affiliate Links). The Affiliate is responsible for all materials that appear on the Affiliate Platform, other than any creative inventory provided to the Affiliate by Ethique. This includes compliance with the Ethique Brand Guidelines.
5.3 Where the Affiliate uses an advertising service such as Google Ads in the performance of the Services, the Affiliate must not bid on any keywords which are or include an Ethique Brand.
5.4 The Affiliate shall provide Ethique with:
5.4.1 all co-operation and assistance as is necessary for the proper performance of Ethique's obligations under these terms; and
5.4.2 all access to such information as reasonably requested by Ethique.
5.5 The Affiliate acknowledges that Ethique has explained clearly and fully to the Affiliate the nature and brand image of Ethique's products and agrees that it must not do or omit to do anything that may damage Ethique's brand or image or that of any of its products.
5.6 The Affiliate acknowledges and agrees that it has no authority to legally bind Ethique to any agreement with Customers, other users or anyone else and that it has not been appointed and is not the agent of Ethique, and must not hold itself out as Ethique's agent.
5.7 The Affiliate must:
5.7.1 comply with all applicable laws and regulations, including the Advertising Standards and applicable laws relating to data protection and privacy, in the performance of the Services and all of its obligations under these terms;
5.7.2 promptly pass on to Ethique any complaints the Affiliate receives about Ethique products or any questions or comments the Affiliate receives in relation to Ethique's products;
5.7.3 not make any unsubstantiated, misleading or deceptive representation about Ethique, the Ethique URLs or any of the Ethique products;
5.7.4 not make any pejorative statement relating to Ethique, any of Ethique's brand ambassadors or staff, or any Ethique products in public, online (including on social media), to the press or elsewhere;
5.7.5 where Ethique provides the Affiliate with an Affiliate Code, ensure that when the Affiliate is offering the Affiliate Code to users, it provides prospective customers with reasonably conspicuous notice of the Affiliate Code Terms as part of the promotion of the Affiliate Code;
5.7.6 perform the Services in accordance with Ethique's Brand Guidelines, the terms and conditions applicable to the Affiliate Platform (such as social media platform terms) and any applicable guidance notes and codes of practice issued by the regulator or advertising standards authority in the Affiliate's jurisdiction and any other Territory, and all other applicable guidance and regulations, as updated from time to time; and
5.7.7 not do anything which in Ethique's reasonable opinion would jeopardise the ability of the Affiliate to perform the Services or prejudice the goodwill or reputation of Ethique or its products.
Affiliate Account
5.8 The Affiliate shall at all times while these terms are in force, have a valid Publisher Account with ShareASale Inc. and one or more Authorized User Accounts (Affiliate Accounts). The Affiliate is responsible for the security of its Affiliate Accounts and hereby authorises any user of its Affiliate Accounts to act as its agent in relation to these terms including to contractually bind the Affiliate to these terms and all matters relating to these terms, whether by electronic, online, click-through, clickwrap or similar acceptance. Ethique shall be entitled to rely on the apparent authority of any person using an Affiliate Account.
Warranties and indemnity
5.9 The Affiliate warrants, represents and undertakes to Ethique that:
5.9.1 it will perform the Services with due care and skill;
5.9.2 any content used by the Affiliate in performing the Services, except to the extent that the content was provided by Ethique, will not:
(a) infringe any intellectual property rights of any third party; and
(b) contain any defamatory material nor breach any contract, law, duty of confidentiality, or data protection rights;
5.9.3 it has all necessary licences, approvals and consents to enter into these terms and perform the obligations under them; and
5.9.4 it has not entered into any agreement (such as an affiliate services agreement with a third-party advertiser) that:
(a) would cause the Affiliate to be in breach of these terms or impair the Affiliate's ability to perform the Services in accordance with these terms; or
(b) the Affiliate will be in breach of by performing the Services.
5.10 The Affiliate shall indemnify Ethique against all liabilities, costs, expenses, damages and losses suffered or incurred by Ethique arising out of or in connection with any third-party claims or any action, adjudication or decision against Ethique by any third party (including any regulatory body) arising (in whole or in part) out of any breach of clause 5.9.
6 CHARGES AND PAYMENT
6.1 Ethique will pay ShareASale the Commission in accordance with its obligations under the ShareASale Merchant Terms. The Affiliate acknowledges that Ethique is not required to make any payment directly to the Affiliate and agrees that the Commission for a Transaction is payable to the Affiliate by ShareASale Inc. in accordance with the ShareASale Publisher Terms. Unless otherwise set out on the ShareASale Interface, the Commission will only apply to Transactions (and not Leads, Clicks or Ad Impressions, as defined in the ShareASale Publisher Terms).
6.2 To avoid doubt, where a Customer enters an Affiliate Code during the checkout process but the Customer:
6.2.1 has not clicked through to the Ethique URL using an Affiliate Link; or
6.2.2 has clicked through to the Ethique URL using an Affiliate Link, but the Tracking Gap has expired,
no Commission will be payable in respect of that purchase.
7 PROPRIETARY RIGHTS
7.1 The Affiliate acknowledges and agrees that Ethique and its licensors own all intellectual property rights in the Ethique URLs, Ethique Brand and all Ethique products. Except as expressly stated herein, these terms do not grant the Affiliate any rights (including intellectual property rights) to Ethique's or its licensors' property. All such rights are reserved to Ethique.
8 CONFIDENTIALITY & PRIVACY
Confidentiality
8.1 A party receiving Confidential Information must (except with the disclosing party's prior written approval):
8.1.1 not use the disclosing party's Confidential Information (nor allow it to be used) for any purpose other than to perform its obligations under these terms;
8.1.2 not disclose the disclosing party's Confidential Information to anyone other than its:
(a) personnel who have a need-to-know for the purposes of fulfilling the receiving party's obligations under these terms; or
(b) professional advisors, upon obtaining a similar undertaking of confidentiality from such advisors;
8.1.3 treat, and will ensure that its relevant personnel treat, the disclosing party's Confidential Information with the utmost confidence;
8.1.4 without limiting the above obligations, exercise the same standard of care in the treatment and protection of the Confidential Information as it exercises for its own confidential information of a similar nature and sensitivity; and
8.1.5 on discovery of any breach of this clause by the receiving party or any person in possession of Confidential Information through the receiving party, immediately notify the disclosing party of such breach and co-operate with the disclosing party in every reasonable way to help the disclosing party regain possession of the Confidential Information and prevent its further unauthorised use or disclosure.
Privacy
8.2 Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all applicable laws and regulations relating to the use of personal information, including the Privacy Act 2020 and any laws governing the sending of marketing material (including the Unsolicited Electronic Messages Act 2007).
9 LIMITATION OF LIABILITY
9.1 Except as expressly and specifically provided in these terms, all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these terms.
9.2 Nothing in these terms limits or excludes any liability for (or remedy in respect of):
9.2.1 death or personal injury caused by a party's negligence;
9.2.2 fraud or fraudulent misrepresentation; or
9.2.3 any other liability that may not be restricted, or excluded, pursuant to applicable laws.
9.3 Subject to clauses 5.10 and 9.2, neither party will under any circumstances be liable to the other, whether in equity, contract, tort (including negligence), or breach of statutory duty, for any loss or damage which, although in the contemplation of the parties at the time they entered into these terms, is not a loss or damage which may fairly and reasonably be considered to arise naturally (that is, in the usual course of things) from the breach or other act of omission.
9.4 Subject to clause 8.2, Ethique's total aggregate liability to the Affiliate, whether in contract, tort (including negligence or breach of statutory duty) or otherwise, arising out of or in connection with these terms shall be limited to the Commissions paid by Ethique to ShareASale for the Services provided by the Affiliate under these terms during the 12 months preceding the date on which the claim arose.
10 TERM AND TERMINATION
10.1 These terms shall commence on the Effective Date and shall continue until terminated in accordance with this clause 10.
10.2 Ethique may terminate these terms at any time if it discontinues or withdraws, in whole or in part, its affiliate marketing program. Ethique will endeavour to give Affiliate as much notice of this termination as reasonably practicable, but any such termination will be without liability to Ethique.
10.3 These terms will automatically terminate if:
10.3.1 Ethique's agreement with ShareASale Inc. (on the ShareASale Merchant Terms) expires or is terminated; or
10.3.2 the Affiliate's agreement with ShareASale Inc. (the ShareASale Publisher Terms) expires or is terminated or the Affiliate otherwise ceases to participate in the Network (as defined in the ShareASale Publisher Terms). The Affiliate must notify Ethique as soon as possible if any of the events in this clause 10.3.2 has occurred or is likely to.
10.4 Without affecting any other right or remedy available to it, either party may terminate these terms with immediate effect by giving written notice to the other party if:
10.4.1 the other party commits a material breach of any provision of these terms and (if such a breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
10.4.2 the other party suffers an Insolvency Event;
10.4.3 if the other party is an incorporated body, there is a change of Control of the other party. 'Control' for these purposes means:
(a) holding the majority of the voting rights or share capital of the other party; or
(b) otherwise having the power to direct the management and policies of the other party.
10.5 Ethique may terminate these terms:
10.5.1 by giving 30 days' written notice to the Affiliate, for any reason; or
10.5.2 with immediate effect by giving written notice to the Affiliate, if the Affiliate does anything which in Ethique's reasonable opinion may prejudice the goodwill or reputation of Ethique or its products.
10.6 On termination of these terms for any reason:
10.6.1 all licences and benefits granted under these terms shall immediately terminate;
10.6.2 each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
10.6.3 the Affiliate must immediately remove any references to Ethique and the Ethique URLs from the Affiliate Platform including the Affiliate Links; and
10.6.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
11 INCORPORATION OF SHAREASALE PUBLISHER TERMS
11.1 The following provisions of the ShareASale Publisher Terms are incorporated by reference, as if references to 'ShareASale' were references to Ethique and references to 'Publisher' were references to 'Affiliate', and otherwise mutatis mutandis: 3.7 to 3.10, 4.1, 4.2, 4.6, 9.2.3, 9.2.4, 9.2.5, 9.2.8, 9.2.9 and 9.2.10.
11.2 The Affiliate acknowledges that, notwithstanding clause 8.1 of the ShareASale Publisher Terms, these terms create a binding contract between Ethique and the Affiliate.
12 NOTICES
Giving notices
12.1 Any notice, consent, approval or other communication (each a Notice) given to a party under these terms is only given if it is in writing and sent by email to that party at its email address and marked for the attention of the relevant department or officer (if any) set out below, or as notified in writing to the other party from time to time.
Ethique
Name: Ethique Limited
Email Address: bethia@ethique,com
Attention: Bethia Stone
Affiliate Email Address: The address under which the Affiliate Account is registered
Time notice is given
12.2 Any Notice is to be treated as given on the date and time the email is sent (as shown in a confirmation of the email generated by the sender's computer system which indicates that the email was sent to the email address of the recipient notified for the purpose of this clause and provided that the sender's computer system has not generated a record that the email has not been received).
12.3 However, if any Notice is given on a day that is not a business day, or after 5.00pm on a business day, in the place of the party to whom it is sent it is to be treated as having been given at the beginning of the next business day.
13 MISCELLANEOUS
Force Majeure
13.1 Neither party shall be in breach of these terms nor liable for delay in performing, or failure to perform, any of its obligations under these terms if such delay or failure result from events, circumstances or causes beyond its reasonable control.
Waivers
13.2 No failure or delay by a party to exercise any right or remedy provided under these terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Severability
13.3 Each provision of these terms is individually severable. If any provision is or becomes illegal, unenforceable or invalid in any jurisdiction it is to be treated as being severed from these terms in the relevant jurisdiction, but the rest of these terms will not be affected. The legality, validity and enforceability of the provision in any other jurisdiction will not be affected.
Assignments and transfers
13.4 The Affiliate must not assign or transfer any of its rights or obligations under these terms without the prior written consent of Ethique.
No partnership or agency
13.5 Nothing in these terms is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
Execution of separate documents
13.6 These terms are properly executed if the Affiliate or any user acting through the Affiliate's Authorised Accounts accepts these terms.
Further acts
13.7 Each party must at its own expense promptly execute all documents and do or use reasonable endeavours to cause a third party to do all things that another party from time to time may reasonably request in order to give effect to, perfect or complete these terms and all transactions incidental to them.
Variation
13.8 Ethique may update these terms from time to time by posting the updated terms to ShareASale or on the ShareASale Interface, or otherwise in accordance with the ShareASale Publisher Terms.
Governing law and jurisdiction
13.9 These terms are governed by the law of New Zealand. The parties submit to the non-exclusive jurisdiction of its courts and courts of appeal from them. The parties will not object to the exercise of jurisdiction by those courts on any basis.
SCHEDULE 1
Ethique Brand Guidelines, accessible at https://ethique.sharepoint.com/:f:/s/EthiqueLimited/Egbdbg9peK9BoCY8z97XXDsBoQS7X1e-Llg4_hXTDiGRgQ?e=MRREzq using the password EthiqueAff
SCHEDULE 2
Ethique Brands
Brand Names
Ethique or Etique, Eteek, Etheek, Eteeq, Etheeq, or any other misspelling of the Ethique brand name
Slogans
Raising the bar or raizing the bar, razing the bar, or any other misspelling of the Ethique slogan 'raising the bar'
Clever little bars or any misspelling of the Ethique slogan 'clever little bars'
Rethink refillables or any misspelling of the Ethique slogan 'rethink refillables'
Product Trademarks
Heali Kiwi or heeli kiwi, heali keewi, heeli keewi, or any other misspellings of Heali Kiwi
Mintasy or mintazy, or any other misspelling of Mintasy
Professor Curl or professor kurl, or any other misspelling of Professor Curl
Curliosity or curliozity, or any other misspelling of Curliosity
Quench or qwench, kwench, or any other misspelling of Quench
St Clements or saint clements, st clemens, saint clemens, or any other misspelling of St Clements
Shampooch or any other misspelling of Shampooch
Pawfector or any other misspelling of Pawfector
Pinkalicious Or pinkalishious or pinkalisious, any other misspelling of Pinkalicious
Wonderbar Or Wunderbar, vonderbar, vunderbar, any other misspelling of Wonderbar