Westmore Beauty
Program Terms
Affiliate Agreement
By clicking below, I hereby consent to the following terms and conditions of this Affiliate Agreement (the “Agreement”) effective as of the date of my acceptance (the “Effective Date”) by and between myself (referred to herein as “Affiliate”) and Westmore Beauty Ultra, LLC, with its principal place of business located at 100 N. Pacific Coast Hwy., Suite 1600, El Segundo, CA 90245 (“Advertiser”). This Agreement sets forth the terms and conditions of Affiliate’s participation in Advertiser’s advertising program. Advertiser and Affiliate may also be individually referred to herein as a “Party” and collectively as the “Parties.”
1. The Advertiser Offer.
1.1. Advertiser grants to Affiliate a non-exclusive, non-transferable, revocable and limited license to market, via Affiliate’s social media channels (collectively the “Affiliate Network”), certain products provided by the Advertiser (“Advertiser Offer”) solely and exclusively in accordance with this Agreement.
1.2. Advertiser may terminate Affiliate’s participation in the Advertiser Offer at any time and for any reason in Advertiser’s sole and independent discretion.
2. Content.
2.1. Upon Affiliate’s acceptance of an Advertiser Offer, Advertiser will make available to Affiliate certain products for which Affiliate may create social media posts regarding.
2.2. Affiliate will comply with (i) the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Guides”), current copies of which are available at http://business.ftc.gov/advertising-and-marketing/endorsements, (ii) the WOMMA (Word of Mouth Marketing Association) Code of Ethics and Social Media Disclosure Guide, current copies of which are available at http://www.womma.org, and (iii) Advertiser’s guidelines around the social media posts created for the Advertiser Offer including, but not limited to, required posting language, approved creative material inclusion, hashtags, links and any other instructions provided by Advertiser.
2.3. Advertiser shall provide industry standard information necessary to allow Affiliate to provide links from the Affiliate’s Network to Advertiser’s website. Affiliate shall ensure that the links are properly formatted and functioning properly. Affiliate’s use of such links shall be subject to Advertiser’s prior consent, which consent may be withheld in its sole discretion.
2.4. Advertiser retains full and sole right and ownership of all product names, logos and any other creative material provided by Advertiser.
2.5. Advertiser reserves the right to monitor the Affiliate Network for any reason, including, without limitation, the monitoring of Affiliate’s compliance with the terms of this Agreement.
3. Marketing Restrictions.
3.1. Without limiting the scope of any of the restrictions contained herein, Affiliate must comply with any and all Marketing Restrictions set forth in this Agreement, including Exhibit A attached hereto and incorporated into and made a part of this Agreement.
3.2. Affiliate shall not use any "incentivized marketing," create or suggest the appearance of incentivized marketing, establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with marketing the Advertiser Offer, or otherwise attempt to induce internet users to purchase Advertiser’s products through use of any other incentives, without obtaining the prior written approval of Advertiser.
3.6 Affiliate shall not (a) post any content relating to the Advertiser Offer that a reasonable person would conclude noticeably contains, promotes, references or has links to: (i) profanity, sexually explicit materials, hate or demeaning material, promotion of violence, the use of firearms, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other similar materials deemed unsuitable or harmful to the reputation of Advertiser; (b) engage in any activities or practices which are deceptive, infringe on intellectual property rights or which are prohibited by applicable law; or (c) engage in any activities generally understood as Internet abuse, including, but not limited to, the sending of unsolicited bulk electronic mail.
3.7 Affiliate shall not drive traffic to for any of Advertiser’s Creatives using (a) incentivize or offer points, rewards, cash or prizes for any user action; (b) misleading statements (i.e., “You Have Won!”) or any other false or deceptive practices designed to mislead the consumer and/or falsely suggest a link between Advertiser and any third party; (iii) an unauthorized host; (iv) invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end-user; (v) any “faux functionality” advertising (i.e., advertisements that contain graphic representations of “system” or “functionality” elements, typically encountered in a PC/Mac environments); (vi) co-registrations, absent prior written approval from Advertiser; (vii) short message service (SMS) marketing; (viii) pop-up or pop-under ads; (ix) cookie stuffing; (x) typosquatting (also known as URL hijacking); (xi) bidding on any trademarks owned or licensed by Advertiser unless pre-approved by Advertiser in writing; and (xii) any downloadable applications.
4. Fees and Payment.
4.1. Affiliate shall receive payment from Share-A-Sale in accordance with their standard payment terms.
5. Proprietary Rights and Restrictions.
5.1. Advertiser grants Affiliate a non-exclusive, non-transferable, revocable license during the term of this Agreement and any extensions thereof to use the specific logos, trade names, trademarks and similar identifying information (the “Marks”) contained in the Advertiser Offer. The Marks shall be used solely for the purpose of marketing the Advertiser Offers on the Affiliate Network. Affiliate may not alter, modify or change the Marks in any way. Affiliate agrees not to use the Marks in any manner that is disparaging or that otherwise portrays the owner of such Marks in a negative manner. Affiliate will not now, or in the future, assert any claim of rights or ownership in the Marks or any other intellectual property to which it came into possession in the performance of its obligations hereunder. Advertiser may revoke the license granted to Affiliate herein at any time by providing Affiliate with written notice.
6. Confidentiality.
6.1. Advertiser may disclose to Affiliate certain information as a result of Affiliate’s participation in the Advertiser Offer, which information Advertiser considers confidential ("Confidential Information"). For purposes of this Agreement, Advertiser’s "Confidential Information" shall include, but is not to be limited to, the terms of this Agreement, Advertiser’s business and financial information, customer and vendor lists, user volunteered data, performance data, fees and payment structure, pricing and sales information for Advertiser and the identity of all parties selling or marketing Advertiser Offers. Confidential Information shall also include any information designated as confidential during the term of this Agreement or which should reasonably known to be confidential regardless of any such designation.
6.2. Affiliate agrees at all times to keep strictly confidential all Confidential Information and shall not release Confidential Information to any third party without the express written consent of Advertiser.
6.3. Affiliate agrees that a breach of this Section 9 would result in irreparable injury to Advertiser for which monetary damages would be inadequate. In such event, Advertiser shall have the right to seek, in addition to other remedies available to it by law or pursuant to this Agreement, immediate injunctive relief against Affiliate without the need to post a bond.
7. Representations, Warranties and Covenants. Affiliate hereby represents, warrants and covenants that:
7.1. It has the right and full power and authority to enter into this Agreement.
7.2. At all times, Affiliate will comply with the Marketing Restrictions contained herein, all applicable international, foreign, state, federal and local laws, rules, ordinances, and Federal Trade Commission enabling regulations (including, without limitation, CAN-SPAM, the Fair Credit Reporting Act and the Children’s Online Privacy Protection Act), and all laws of foreign jurisdictions including, without limitation, consumer protection, privacy, false or deceptive advertising or misrepresentation, fraud and rights of privacy laws.
7.3. The execution of this Agreement by Affiliate shall not breach, conflict with or constitute a default under, any agreement, instrument or obligation of Affiliate.
7.4. Affiliate shall (a) only use Marks that are pre-approved by Advertiser and solely for the benefit of Advertiser as contemplated hereunder; and (b) that all content posted in accordance with an Advertiser Offer (i) does not violate or infringe upon the rights of any third party, including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights; (ii) are not libelous, illegal, abusive, discriminatory, obscene, pornographic, fraudulent, deceptive, misleading or otherwise offensive; and (iii) are accurate, do not contain any fraudulent or deceptive materials, and do not falsely represent the product, service or message being communicated.
8. No Warranty and Release.
8.1. ADVERTISER, (INCLUDING ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AFFILIATE S AND AGENTS), PROVIDES THIS ADVERTISER OFFER, ITS WEBSITE, SERVICE AND PRODUCTS SOLD “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY, AND SUPPLIER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, ADVERTISERABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.2. AFFILIATE RELEASES ADVERTISER FROM ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. AFFILIATE WAIVES THE PROTECTIONS AFFORDED BY CALIFORNIA CIVIL CODE § 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” AFFILIATE ACKNOWLEDGES AND AGREES THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY THE PARTIES.
9. Limitation of Liability and Indemnification.
9.1. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF DATA, ARISING IN CONNECTION WITH THIS AGREEMENT, THE ADVERTISER OFFER, PRODUCTS OR SERVICES SOLD THROUGH THE ADVERTISER OFFER OR OF ANY OTHER OBLIGATION RELATING TO THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ADVERTISER’S AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT AND THE ADVERTISER OFFER EXCEED THE TOTAL FEES PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ANY SUCH ALLEGED LIABILITY FIRST OCCURED.
9.2. Both Parties agree to indemnify, defend and hold harmless the other Party, its parents, affiliates and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from or related to (i) breach of this Agreement and/or any representation or warranty contained herein; (ii) the Affiliate's marketing practices; (iii) any third party allegation or claim relating to a violation of any laws and regulations; (iv) any allegation that a Party has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (v) Affiliate's negligence or willful misconduct. Each Party agrees to promptly assume such defense with counsel reasonably acceptable to the indemnified Party upon written notice to you of such indemnifiable claim. The indemnified Party reserves the right to participate in the defense at its sole expense. The indemnifying Party agrees that it will not settle any indemnifiable claim without the indemnified Party’s prior written approval.
10. Term and Termination.
10.1. This Agreement shall govern the Advertiser Offer that Affiliate accepts from the date hereof until Advertiser completes the Advertiser Offer.
10.2. Either Party may terminate this Agreement at any time, with or without cause, by providing the other Party with one (1) day’s advance written notice of termination (including by email).
10.3. Upon any termination of the Agreement, any and all licenses granted hereunder shall immediately expire.
10.4. Upon termination or expiration of this Agreement, Affiliate shall promptly return to Advertiser all Confidential Information, and any and all artwork and Marks provided under this Agreement. Affiliate shall immediately remove from the Affiliate Network all Advertiser Marks and all references to Advertiser, the Advertiser Offer and otherwise comply with the requests of Advertiser in ending the relationship and protecting and preserving information and property.
11. Relationship of the Parties.
11.1. Each of the Parties is an independent affiliate. Nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Advertiser and Affiliate and neither Party shall have the power to obligate or bind the other Party in any manner whatsoever.
12. General Terms and Conditions.
12.1. Governing Law. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of California, without reference to its conflict of laws rules or principles.
12.2. Venue. This Agreement shall be governed by the laws of the State of California. Any action brought to enforce or interpret this Agreement, or arising out of or relating to this Agreement, shall be brought only in the state or federal courts of in Los Angeles County, California. Affiliate agrees that such courts shall have personal jurisdiction to fully adjudicate all such matters, this stipulation is a material term over which the Parties negotiated, and Affiliate waives any rights that it might have for objecting to personal jurisdiction or venue.
12.3. Entire Agreement & Amendments. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the Parties and can only be amended in a writing signed by all Parties hereto. The Parties agree that this Agreement has been mutually negotiated and drafted and no presumption relating to ambiguities in favor of one interpretation over another due to the identity of the drafting Party may arise.
12.4. Assignment. This Agreement, and all rights granted hereunder, is not transferable or assignable by Affiliate without the prior written consent of Advertiser. Advertiser may assign this Agreement, and any and all rights granted hereunder, in its sole discretion, without Affiliate’s consent. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, the Parties and their respective successors and permitted assigns. The provisions of this Agreement are not for the benefit of any third party.
12.5. Attorneys’ Fees. In the event that any action is brought to enforce any provision of this Agreement or to declare a breach of this Agreement, the prevailing Party shall be entitled to seek recovery of, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorneys’ fees, incurred thereby.
12.6. Notices. Any notice given under this Agreement shall be in electronic writing (i.e., e-mail) and delivered by confirmed email and will be deemed received upon sending to the email address provided in the Advertiser Offer or known by the sending Party as the email address of record.
12.7. Force Majeure. Except for the obligation of payment properly due and owing, either Party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its control, including, but not limited to, an act of God, earthquake, labor disputes, riots, war, civil insurrection, expropriation, novelty of product manufacture or other unanticipated manufacturing problems, governmental requirements, inability to secure materials on a timely basis, and transportation difficulties. The obligations and rights of the Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable delay. In order to obtain a suspension under this Section, the Party delayed shall send written notice of the delay and the reason therefore to the other Party within seven (7) days from the time the Party delayed knew of the cause of such delay.
12.8. Severability and Reformation. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation. Headings are for the convenience of reference only and do not alter the rights and obligations of the Parties.
12.9. Waiver. A waiver of any default, breach or non-compliance under this Agreement is not effective unless in writing and signed by the Party to be bound by the waiver. No waiver shall be inferred from or implied by any failure to act or delay in acting by a Party in respect of any default, breach, non-observance or by anything done or omitted to be done by another Party. The waiver by a Party of any default, breach or non-compliance under this Agreement shall not operate as a waiver of that Party’s rights under this Agreement in respect of any continuing or subsequent default, breach or non-compliance (whether of the same or any other nature).
12.10. Modifications. Advertiser may modify any of the terms and conditions contained in this Agreement, at any time and at its sole and absolute discretion, upon providing notice to Affiliate. All such modifications shall take effect forty-eight (48) hours after Advertiser provides written notice, unless indicated otherwise. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate this Agreement. Affiliate’s continued participation in the Advertiser Offer following notice of any modification will constitute binding acceptance of the change. Affiliate may not modify this Agreement without Advertiser’s prior written consent.
12.11. Survival. The provisions set forth in this Agreement that by their very nature should survive termination or expiration of this Agreement shall survive.
EXHIBIT A - MARKETING RESTRICTIONS
The purpose of this document is to establish the Marketing Restrictions for Affiliate. Affiliate participating in marketing the Advertiser Offer must abide by the following requirements or as otherwise approved in writing (including by email) by Advertiser.
Marketing Practices
1. All marketing copy, messaging and images must be submitted for approval by Advertiser before being used. This includes email subject lines, body copy and links; display ads, banner ads, interstitial or ‘pop’ pages; text links or landing pages (used via API and/or with or without an enrollment path). Only Advertiser approved copy may be used.
2. Third party trademarks or intellectual property (including logos) are not allowed.
3. Affiliate may not employ, use or receive any direct or indirect benefit from any “cookie-stuffing/forced click” methods.
4. Affiliates may not advertise via paid search methods on Google, Bing or Yahoo.
5. Making the purchase of our product a condition of obtaining any other product or service is not allowed.
6. No typo squatting of any Advertiser owned or managed sites.
7. No advertising on sites that contain adult content, racial, political, hate mongering or otherwise questionable content etc.
8. Affiliate may not run campaigns that are detrimental to Advertiser, its reputation or any of its brands.
9. Affiliate shall not engage in any activities which are deceptive, unlawful, infringe on intellectual property rights, or constitute Internet abuse.
10. No use of incentivize or offer points, rewards, cash or prizes for any user.
11. No use of misleading statements near any social media posts for the Advertiser Offer (i.e., “You Have Won!”) or any other false or deceptive practices designed to mislead the consumer and/or falsely suggest a link between Advertiser, its products and any third party;
12. No use of an unauthorized host or invisible methods to generate impressions, clicks, or transactions or any use of “faux functionality whatsoever.
13. No bidding on any trademarks owned or licensed by Advertiser unless pre-approved by Advertiser in writing or drive traffic by any downloadable applications.
14. Must comply with all guidelines of search engines.
By clicking below, I hereby consent to the following terms and conditions of this Affiliate Agreement (the “Agreement”) effective as of the date of my acceptance (the “Effective Date”) by and between myself (referred to herein as “Affiliate”) and Westmore Beauty Ultra, LLC, with its principal place of business located at 100 N. Pacific Coast Hwy., Suite 1600, El Segundo, CA 90245 (“Advertiser”). This Agreement sets forth the terms and conditions of Affiliate’s participation in Advertiser’s advertising program. Advertiser and Affiliate may also be individually referred to herein as a “Party” and collectively as the “Parties.”
1. The Advertiser Offer.
1.1. Advertiser grants to Affiliate a non-exclusive, non-transferable, revocable and limited license to market, via Affiliate’s social media channels (collectively the “Affiliate Network”), certain products provided by the Advertiser (“Advertiser Offer”) solely and exclusively in accordance with this Agreement.
1.2. Advertiser may terminate Affiliate’s participation in the Advertiser Offer at any time and for any reason in Advertiser’s sole and independent discretion.
2. Content.
2.1. Upon Affiliate’s acceptance of an Advertiser Offer, Advertiser will make available to Affiliate certain products for which Affiliate may create social media posts regarding.
2.2. Affiliate will comply with (i) the Federal Trade Commission’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Guides”), current copies of which are available at http://business.ftc.gov/advertising-and-marketing/endorsements, (ii) the WOMMA (Word of Mouth Marketing Association) Code of Ethics and Social Media Disclosure Guide, current copies of which are available at http://www.womma.org, and (iii) Advertiser’s guidelines around the social media posts created for the Advertiser Offer including, but not limited to, required posting language, approved creative material inclusion, hashtags, links and any other instructions provided by Advertiser.
2.3. Advertiser shall provide industry standard information necessary to allow Affiliate to provide links from the Affiliate’s Network to Advertiser’s website. Affiliate shall ensure that the links are properly formatted and functioning properly. Affiliate’s use of such links shall be subject to Advertiser’s prior consent, which consent may be withheld in its sole discretion.
2.4. Advertiser retains full and sole right and ownership of all product names, logos and any other creative material provided by Advertiser.
2.5. Advertiser reserves the right to monitor the Affiliate Network for any reason, including, without limitation, the monitoring of Affiliate’s compliance with the terms of this Agreement.
3. Marketing Restrictions.
3.1. Without limiting the scope of any of the restrictions contained herein, Affiliate must comply with any and all Marketing Restrictions set forth in this Agreement, including Exhibit A attached hereto and incorporated into and made a part of this Agreement.
3.2. Affiliate shall not use any "incentivized marketing," create or suggest the appearance of incentivized marketing, establish or cause to be established any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with marketing the Advertiser Offer, or otherwise attempt to induce internet users to purchase Advertiser’s products through use of any other incentives, without obtaining the prior written approval of Advertiser.
3.6 Affiliate shall not (a) post any content relating to the Advertiser Offer that a reasonable person would conclude noticeably contains, promotes, references or has links to: (i) profanity, sexually explicit materials, hate or demeaning material, promotion of violence, the use of firearms, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, age, or family status, or any other similar materials deemed unsuitable or harmful to the reputation of Advertiser; (b) engage in any activities or practices which are deceptive, infringe on intellectual property rights or which are prohibited by applicable law; or (c) engage in any activities generally understood as Internet abuse, including, but not limited to, the sending of unsolicited bulk electronic mail.
3.7 Affiliate shall not drive traffic to for any of Advertiser’s Creatives using (a) incentivize or offer points, rewards, cash or prizes for any user action; (b) misleading statements (i.e., “You Have Won!”) or any other false or deceptive practices designed to mislead the consumer and/or falsely suggest a link between Advertiser and any third party; (iii) an unauthorized host; (iv) invisible methods to generate impressions, clicks, or transactions that are not initiated by the affirmative action of the end-user; (v) any “faux functionality” advertising (i.e., advertisements that contain graphic representations of “system” or “functionality” elements, typically encountered in a PC/Mac environments); (vi) co-registrations, absent prior written approval from Advertiser; (vii) short message service (SMS) marketing; (viii) pop-up or pop-under ads; (ix) cookie stuffing; (x) typosquatting (also known as URL hijacking); (xi) bidding on any trademarks owned or licensed by Advertiser unless pre-approved by Advertiser in writing; and (xii) any downloadable applications.
4. Fees and Payment.
4.1. Affiliate shall receive payment from Share-A-Sale in accordance with their standard payment terms.
5. Proprietary Rights and Restrictions.
5.1. Advertiser grants Affiliate a non-exclusive, non-transferable, revocable license during the term of this Agreement and any extensions thereof to use the specific logos, trade names, trademarks and similar identifying information (the “Marks”) contained in the Advertiser Offer. The Marks shall be used solely for the purpose of marketing the Advertiser Offers on the Affiliate Network. Affiliate may not alter, modify or change the Marks in any way. Affiliate agrees not to use the Marks in any manner that is disparaging or that otherwise portrays the owner of such Marks in a negative manner. Affiliate will not now, or in the future, assert any claim of rights or ownership in the Marks or any other intellectual property to which it came into possession in the performance of its obligations hereunder. Advertiser may revoke the license granted to Affiliate herein at any time by providing Affiliate with written notice.
6. Confidentiality.
6.1. Advertiser may disclose to Affiliate certain information as a result of Affiliate’s participation in the Advertiser Offer, which information Advertiser considers confidential ("Confidential Information"). For purposes of this Agreement, Advertiser’s "Confidential Information" shall include, but is not to be limited to, the terms of this Agreement, Advertiser’s business and financial information, customer and vendor lists, user volunteered data, performance data, fees and payment structure, pricing and sales information for Advertiser and the identity of all parties selling or marketing Advertiser Offers. Confidential Information shall also include any information designated as confidential during the term of this Agreement or which should reasonably known to be confidential regardless of any such designation.
6.2. Affiliate agrees at all times to keep strictly confidential all Confidential Information and shall not release Confidential Information to any third party without the express written consent of Advertiser.
6.3. Affiliate agrees that a breach of this Section 9 would result in irreparable injury to Advertiser for which monetary damages would be inadequate. In such event, Advertiser shall have the right to seek, in addition to other remedies available to it by law or pursuant to this Agreement, immediate injunctive relief against Affiliate without the need to post a bond.
7. Representations, Warranties and Covenants. Affiliate hereby represents, warrants and covenants that:
7.1. It has the right and full power and authority to enter into this Agreement.
7.2. At all times, Affiliate will comply with the Marketing Restrictions contained herein, all applicable international, foreign, state, federal and local laws, rules, ordinances, and Federal Trade Commission enabling regulations (including, without limitation, CAN-SPAM, the Fair Credit Reporting Act and the Children’s Online Privacy Protection Act), and all laws of foreign jurisdictions including, without limitation, consumer protection, privacy, false or deceptive advertising or misrepresentation, fraud and rights of privacy laws.
7.3. The execution of this Agreement by Affiliate shall not breach, conflict with or constitute a default under, any agreement, instrument or obligation of Affiliate.
7.4. Affiliate shall (a) only use Marks that are pre-approved by Advertiser and solely for the benefit of Advertiser as contemplated hereunder; and (b) that all content posted in accordance with an Advertiser Offer (i) does not violate or infringe upon the rights of any third party, including, but not limited to, copyrights, trademarks, privacy, or other personal or proprietary rights; (ii) are not libelous, illegal, abusive, discriminatory, obscene, pornographic, fraudulent, deceptive, misleading or otherwise offensive; and (iii) are accurate, do not contain any fraudulent or deceptive materials, and do not falsely represent the product, service or message being communicated.
8. No Warranty and Release.
8.1. ADVERTISER, (INCLUDING ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, AFFILIATE S AND AGENTS), PROVIDES THIS ADVERTISER OFFER, ITS WEBSITE, SERVICE AND PRODUCTS SOLD “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY, AND SUPPLIER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, ADVERTISERABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8.2. AFFILIATE RELEASES ADVERTISER FROM ALL CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT. AFFILIATE WAIVES THE PROTECTIONS AFFORDED BY CALIFORNIA CIVIL CODE § 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” AFFILIATE ACKNOWLEDGES AND AGREES THAT THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED INTO BY THE PARTIES.
9. Limitation of Liability and Indemnification.
9.1. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF USE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, OR LOSS OF DATA, ARISING IN CONNECTION WITH THIS AGREEMENT, THE ADVERTISER OFFER, PRODUCTS OR SERVICES SOLD THROUGH THE ADVERTISER OFFER OR OF ANY OTHER OBLIGATION RELATING TO THIS AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ADVERTISER’S AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT AND THE ADVERTISER OFFER EXCEED THE TOTAL FEES PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ANY SUCH ALLEGED LIABILITY FIRST OCCURED.
9.2. Both Parties agree to indemnify, defend and hold harmless the other Party, its parents, affiliates and/or subsidiaries, and each of their respective officers, directors, partners, members, managers, employees, agents and attorneys, from and against any and all liabilities, claims, actions, suits, proceedings, judgments, fines, damages, costs, losses and expenses (including reasonable attorneys' fees, court costs and/or settlement costs) arising from or related to (i) breach of this Agreement and/or any representation or warranty contained herein; (ii) the Affiliate's marketing practices; (iii) any third party allegation or claim relating to a violation of any laws and regulations; (iv) any allegation that a Party has infringed upon the trademark, trade name, service mark, copyright, license, intellectual property or other proprietary right of any third party; (v) Affiliate's negligence or willful misconduct. Each Party agrees to promptly assume such defense with counsel reasonably acceptable to the indemnified Party upon written notice to you of such indemnifiable claim. The indemnified Party reserves the right to participate in the defense at its sole expense. The indemnifying Party agrees that it will not settle any indemnifiable claim without the indemnified Party’s prior written approval.
10. Term and Termination.
10.1. This Agreement shall govern the Advertiser Offer that Affiliate accepts from the date hereof until Advertiser completes the Advertiser Offer.
10.2. Either Party may terminate this Agreement at any time, with or without cause, by providing the other Party with one (1) day’s advance written notice of termination (including by email).
10.3. Upon any termination of the Agreement, any and all licenses granted hereunder shall immediately expire.
10.4. Upon termination or expiration of this Agreement, Affiliate shall promptly return to Advertiser all Confidential Information, and any and all artwork and Marks provided under this Agreement. Affiliate shall immediately remove from the Affiliate Network all Advertiser Marks and all references to Advertiser, the Advertiser Offer and otherwise comply with the requests of Advertiser in ending the relationship and protecting and preserving information and property.
11. Relationship of the Parties.
11.1. Each of the Parties is an independent affiliate. Nothing in this Agreement shall create any partnership, joint venture, agency, franchise, sales representative or employment relationship between Advertiser and Affiliate and neither Party shall have the power to obligate or bind the other Party in any manner whatsoever.
12. General Terms and Conditions.
12.1. Governing Law. This Agreement shall be governed by, interpreted and construed in accordance with the laws of the State of California, without reference to its conflict of laws rules or principles.
12.2. Venue. This Agreement shall be governed by the laws of the State of California. Any action brought to enforce or interpret this Agreement, or arising out of or relating to this Agreement, shall be brought only in the state or federal courts of in Los Angeles County, California. Affiliate agrees that such courts shall have personal jurisdiction to fully adjudicate all such matters, this stipulation is a material term over which the Parties negotiated, and Affiliate waives any rights that it might have for objecting to personal jurisdiction or venue.
12.3. Entire Agreement & Amendments. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior or contemporaneous oral or written agreements or understandings between the Parties and can only be amended in a writing signed by all Parties hereto. The Parties agree that this Agreement has been mutually negotiated and drafted and no presumption relating to ambiguities in favor of one interpretation over another due to the identity of the drafting Party may arise.
12.4. Assignment. This Agreement, and all rights granted hereunder, is not transferable or assignable by Affiliate without the prior written consent of Advertiser. Advertiser may assign this Agreement, and any and all rights granted hereunder, in its sole discretion, without Affiliate’s consent. Subject to the foregoing, this Agreement shall inure to the benefit of, and shall be binding on, the Parties and their respective successors and permitted assigns. The provisions of this Agreement are not for the benefit of any third party.
12.5. Attorneys’ Fees. In the event that any action is brought to enforce any provision of this Agreement or to declare a breach of this Agreement, the prevailing Party shall be entitled to seek recovery of, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorneys’ fees, incurred thereby.
12.6. Notices. Any notice given under this Agreement shall be in electronic writing (i.e., e-mail) and delivered by confirmed email and will be deemed received upon sending to the email address provided in the Advertiser Offer or known by the sending Party as the email address of record.
12.7. Force Majeure. Except for the obligation of payment properly due and owing, either Party shall be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its control, including, but not limited to, an act of God, earthquake, labor disputes, riots, war, civil insurrection, expropriation, novelty of product manufacture or other unanticipated manufacturing problems, governmental requirements, inability to secure materials on a timely basis, and transportation difficulties. The obligations and rights of the Party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable delay. In order to obtain a suspension under this Section, the Party delayed shall send written notice of the delay and the reason therefore to the other Party within seven (7) days from the time the Party delayed knew of the cause of such delay.
12.8. Severability and Reformation. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be reformed to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation. Headings are for the convenience of reference only and do not alter the rights and obligations of the Parties.
12.9. Waiver. A waiver of any default, breach or non-compliance under this Agreement is not effective unless in writing and signed by the Party to be bound by the waiver. No waiver shall be inferred from or implied by any failure to act or delay in acting by a Party in respect of any default, breach, non-observance or by anything done or omitted to be done by another Party. The waiver by a Party of any default, breach or non-compliance under this Agreement shall not operate as a waiver of that Party’s rights under this Agreement in respect of any continuing or subsequent default, breach or non-compliance (whether of the same or any other nature).
12.10. Modifications. Advertiser may modify any of the terms and conditions contained in this Agreement, at any time and at its sole and absolute discretion, upon providing notice to Affiliate. All such modifications shall take effect forty-eight (48) hours after Advertiser provides written notice, unless indicated otherwise. If any modification is unacceptable to Affiliate, Affiliate’s only recourse is to terminate this Agreement. Affiliate’s continued participation in the Advertiser Offer following notice of any modification will constitute binding acceptance of the change. Affiliate may not modify this Agreement without Advertiser’s prior written consent.
12.11. Survival. The provisions set forth in this Agreement that by their very nature should survive termination or expiration of this Agreement shall survive.
EXHIBIT A - MARKETING RESTRICTIONS
The purpose of this document is to establish the Marketing Restrictions for Affiliate. Affiliate participating in marketing the Advertiser Offer must abide by the following requirements or as otherwise approved in writing (including by email) by Advertiser.
Marketing Practices
1. All marketing copy, messaging and images must be submitted for approval by Advertiser before being used. This includes email subject lines, body copy and links; display ads, banner ads, interstitial or ‘pop’ pages; text links or landing pages (used via API and/or with or without an enrollment path). Only Advertiser approved copy may be used.
2. Third party trademarks or intellectual property (including logos) are not allowed.
3. Affiliate may not employ, use or receive any direct or indirect benefit from any “cookie-stuffing/forced click” methods.
4. Affiliates may not advertise via paid search methods on Google, Bing or Yahoo.
5. Making the purchase of our product a condition of obtaining any other product or service is not allowed.
6. No typo squatting of any Advertiser owned or managed sites.
7. No advertising on sites that contain adult content, racial, political, hate mongering or otherwise questionable content etc.
8. Affiliate may not run campaigns that are detrimental to Advertiser, its reputation or any of its brands.
9. Affiliate shall not engage in any activities which are deceptive, unlawful, infringe on intellectual property rights, or constitute Internet abuse.
10. No use of incentivize or offer points, rewards, cash or prizes for any user.
11. No use of misleading statements near any social media posts for the Advertiser Offer (i.e., “You Have Won!”) or any other false or deceptive practices designed to mislead the consumer and/or falsely suggest a link between Advertiser, its products and any third party;
12. No use of an unauthorized host or invisible methods to generate impressions, clicks, or transactions or any use of “faux functionality whatsoever.
13. No bidding on any trademarks owned or licensed by Advertiser unless pre-approved by Advertiser in writing or drive traffic by any downloadable applications.
14. Must comply with all guidelines of search engines.