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Affiliate Terms & Conditions
Independent Marketing Representative Agreement
Paula's Choice, Inc., (hereinafter "PCI"), a Washington Corporation, with principal offices located in Renton, Washington and our affiliate agree for good and valuable consideration, the receipt of which is hereby acknowledged, as follows:
For purposes of this Agreement, "we", "us" and "our" refers to PCI. "You" and "your" refers to the affiliate.
1) Introduction. We will evaluate your application and will notify you of its acceptance or rejection. Acceptance by us of your application is within our sole discretion. Generally, we will reject your application if it appears (within our sole discretion) that you have a history of improper practices, you are already registered with us under another name or in affiliation with another entity, you promote sexually explicit materials, discrimination, illegal activities, or violence, or otherwise violate intellectual property rights. Participation as an affiliate under our program is limited to parties that lawfully can enter into and form contracts under applicable law. Minors are not allowed to participate, and the age of majority is either 18 or 21 years of age, depending upon the state of the U.S. or the province of Canada in which you reside.
2) Scope of Services. The affiliate shall market and sell PCI's products by directing traffic to PCI's website, or otherwise referring prospective customers to purchase the products being marketed through the program. PCI shall promptly fulfill all such orders placed in accordance with its qualifying standards listed below. The affiliate is not under the control or direction of PCI and acts at all times as an independent the affiliate for PCI. No partnership, strategic relationship, joint venture, or any other cooperative effort upon which liability for misconduct of one party could be imputed to the other party shall arise from this Agreement or the relationship.
Qualifying Standards
Enrollment in the Program
To begin the enrollment process, you will submit a complete Program application via the Paula's Choice Site. We will evaluate your application in good faith and will notify you of its acceptance or rejection. We may reject your application if we determine (in our sole discretion) that your site is unsuitable for the Program. Unsuitable sites include, but are not limited to, those that:
- promote sexually explicit materials
- promote violence
- promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- promote illegal activities
- include "Paula's Choice", or any other trademark of PaulasChoice.com, Inc. or its affiliates, or variations or misspellings of any of them, in their URLs to the left of the top-level domain name (e.g., ".com", ".net", ".uk", etc.) -- for example, a URL such as "PaulasChoice.mydomain.com", "PaulsChoice.com be unsuitable
- otherwise violate intellectual property rights.
By participating in the Program you agree that you will not engage in any such activities. If we reject your application, you are welcome to reapply to the Program at any time. You should also note that if we accept your application and your site is thereafter determined (in our sole discretion) to be unsuitable for the Program, we may terminate this Agreement. Participation in the Program is limited to parties that lawfully can enter into and form contracts under applicable law. For example, minors are not allowed to participate in the Program.
Order Processing
We will process Product orders placed by customers who follow Special Links from your site to the Paula's Choice Site. We reserve the right to reject orders that do not comply with any requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, and returns, and handle customer service. We will track sales made to customers who purchase Products by using Special Links from your site to the Paula's Choice Site and will make available to you reports summarizing this sales activity. The form, content, and frequency of the reports may vary from time to time in our discretion.
Referral Fees
We will pay you referral fees on certain Product sales to third parties. For a Product sale to be eligible to earn a referral fee, the customer must click-through a Special Link from your site to the Paula's Choice Site, and add the Product to his or her shopping cart during a session. We will only pay referral fees on eligible Products after order, payment and shipping have occurred.
To permit accurate tracking, reporting and fee accrual, you must ensure that the Special Links between your site and the Paula's Choice Site are properly formatted. We will not be liable for paying referral fees on purchases that are not correctly tracked and reported because the links between your site and the Paula's Choice Site are not properly formatted.
We will not, however, pay referral fees on any Products that are added to a customer's Shopping Cart after the customer has reentered the Paula's Choice Site (other than through a Special Link from your site), as determined by us, even if the customer previously followed a link from your site to the Paula's Choice Site. In addition, we will not pay referral fees for any purchases made by customers referred to us through Special Links generated or displayed in response to general Internet search queries or keywords.
You may not purchase products during sessions initiated through the links on your site for your own use, for resale or commercial use of any kind. This includes orders for customers or on behalf of customers or orders for products to be used by you or your friends, relatives, or associates in any manner. Such purchases may result (in our sole discretion) in the withholding of referral fees and/or the termination of this Agreement.
3) Term. This is an at-will Agreement. It may be terminated at any time by either party for any reason. The provisions of this Agreement may be changed from time to time by PCI, and such change is effective upon the posting to the website of PCI or the sending of an email with a copy of the revised Agreement to the email address on file for the affiliate. It is important to keep your contact information up to date. If the affiliate does not agree with the revised terms, notice of termination may be delivered as set forth herein to PCI.
4) Payments. PCI shall pay the affiliate compensation on the terms set forth in the commission program shown below:
Referral Fee Schedule
During each calendar month, for Qualifying Products sold during sessions initiated through Special Links on your site, you will earn (subject to the other terms of this Agreement) commissions of 15% of "Qualifying Revenues" (revenues derived by us from customers as a result of sales of Qualifying Product units sold during sessions initiated through Special Links on your site, excluding costs for shipping, handling, gift-wrapping, taxes separately stated and charged to the customer, service charges, rebates, credit card processing fees, returns and bad debt).
Referral Fee Payment
We will pay you referral fees on a monthly basis for Qualifying Products shipped in the applicable month. Approximately 60 days following the end of each calendar month, we will send you a check for the referral fees earned. We are obligated by U.S. federal law to obtain tax information from Program participants who are U.S. citizens, U.S. residents or U.S. corporations and from Program participants who are not U.S. citizens or residents but whose businesses are taxable in the U.S. If we believe you are a Program participant from whom we are obligated to obtain tax information and you do not provide this information to us after we have requested it, we may withhold your referral fee payments until you provide this information or otherwise satisfy us that you are not a person from whom we are required to obtain tax information.
5) Performance Standards. The affiliate and its sub affiliates/marketing affiliates operating under this Agreement shall abide by all state and federal laws in the performance of all marketing and sales activities, including without limitation, all commercial email and advertising laws. This Agreement may be terminated immediately upon receipt by PCI of any information suggesting a violation of this paragraph, and all monies due and owing at that time and in the future as residuals or otherwise shall be forfeited. PCI generally operates under a "zero tolerance" standard and no opportunity for remediation will necessarily be provided to the affiliate. If the misconduct is related solely to the actions of a sub affiliate, The affiliate shall notify PCI immediately, provide details of the misconduct adequate for The affiliate to confirm the source of the misconduct, and PCI may, in its sole discretion, not terminate this Agreement, but impose limitations and restrictions on The affiliate, renegotiate this Agreement, require adequate assurances against recurrences, impose membership requirements on sub affiliates, require compliance audits by The affiliate of its sub affiliates, or take other actions. The affiliate shall promptly notify PCI of all claims asserted by third parties relating to alleged misconduct by the affiliate or its sub affiliate.
The following are examples of practices PCI does not permit:
A) For Commercial Email
i) sending email promotions of any kind whatsoever.
B) For Domain Names
i) use of any common law or state or federal registered trademark name in the domain name when advertising within the same market or business as the holder of the trademark rights, and under no circumstance may The affiliate use PCI's name or product or service name in any domain name;
ii) use of any famous trademark in a domain name irrespective of the market, business or product being sold;
iii) forwarding the domain name traffic without using a 301 server side redirect if sending traffic directly to PCI's website;
iv) marketing directed to parked domains.
C) For Advertising
i) promotions that suggest or imply any warranty or other policy that might conflict with PCI's policy;
ii) promotions that involve unlicensed use of materials protected by copyright or trademark law;
iii) promotions promising customers rebates, coupons, tickets, or vouchers without permission from PCI;
iv) comparative advertising of any nature using the name or mark of a competing product unless approved in advance in writing by PCI;
v) closed navigation websites that prevent a visitor from exiting the site without opening a new browser;
vi) related content in any form of communication, including without limitation websites, emails, and newsletters, that associate the product being marketed with gambling, drug, or adult websites, any illegal activity, or any activity that would reasonably disparage or adversely impact the image of the product or service;
vii) pop up and pop under ads generated by software generally considered by the anti-spyware industry to be improper adware, spyware, or malware (page based pop ups and pop unders are acceptable methods of marketing PCI's products and services); and
viii) offline marketing or advertising not exclusively using PCI's pre-approved marketing materials.
D) For Content/Copyright
i) content derived from any third party unless such content is in the public domain, the affiliate holds a written license or has acquired sole and exclusive ownership of it through an assignment.
E) For Content/Trademark/Patent
i) the use of any common law or registered trademark, trade name, service mark, or logo of any third party in the same industry, unless under a fair use doctrine or outside the scope of the business use of the trademark holder, except that PCI marks, business and product names may only be used with express, written permission of PCI and can only be used in direct relation to a conspicuous link placed for the purpose of linking to PCI's site;
ii) the use of such competing marks in any meta tags, meta descriptions or terminology on the affiliate's website or on redirect pages;
iii) the use of any marks/terms as key words in pay per click search engine advertising; and
iv) the use of any proprietary method, trade secrets, patent, or technology of another without a license to use such property for its intended purpose.
v) the use of any of PCI's branded keywords through any of the following: use in subdomains, domain names, and/or subdirectories; use in meta tags, title tags, description meta tags (meta descriptions), and/or headers (H1, H2, and/or H3); use in alt text; and/ or use in anchor text of inbound and/or outbound links. Additionally, the affiliate cannot use, on any webpage, these branded keywords in any font larger than the smallest font used on the page and/or in any fashion not specifically authorized by PCI. The branded keywords include, but are not limited to:
Paula's Choice;
Paula Begoun;
Cosmetics Cop;
CosmeticsCop.com;
Paulaschoice.com;
Don't Go to the Cosmetics Counter without me;
Cosmetic Cop;
CosmeticCop.com;
Beautypedia;
Beautypedia.com;
MyBeautypedia;
Original Beauty Bible;
Beauty Bible;
Clear Success; and
AgeResist.
F) The affiliate agrees to comply with all laws, ordinances, rules, regulations, orders, licenses, permits, judgments, decisions, or other requirements of any governmental authority that has jurisdiction. The affiliate is responsible for selecting and managing all affiliates, sub-affiliates, sub affiliates, and vendors and must use due diligence in selecting and approving each such party, implement written performance standards including at least every standard set forth in this Agreement, and enforce those standards through a reasonable compliance and monitoring program.
To the extent an employee or former employee acts in a manner inconsistent with the confidentiality protections set forth in the agreement, the Disclosing Party shall have the right to enforce the terms of that agreement against the employee or former employee as a third party beneficiary of the employee confidentiality agreement, and the Receiving Party shall take all reasonable steps necessary to provide support for such efforts.
6) NO WARRANTIES. PAULA'S CHOICE, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, PROVIDE ITS SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. PAULA'S CHOICE, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to the affiliate. This warranty gives the affiliate specific legal rights, and The affiliate may also have other legal rights that vary from state to state.
IN ADDITION, TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PAULA'S CHOICE SPECIFICALLY DISCLAIMS ALL WARRANTIES THAT PAULA'S CHOICE PRODUCTS AND/OR SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UPDATED, UNINTERRUPTED, TIMELY, SECURE OR OPERATE WITHOUT ERROR; DISCLAIMS ALL WARRANTIES THAT THE PRODUCTS OR SERVICES WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED; DISCLAIMS ALL WARRANTIES THAT ERRORS OR DEFECTS WILL BE CORRECTED; DISCLAIMS ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; AND DISCLAIMS ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF PAULA'S CHOICE.
THE AFFILIATE ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE SERVICE, AND THAT THE AFFILIATE HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT.
7) Limitation of Liability. IN NO EVENT SHALL PAULA'S CHOICE, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES RESULTING FROM ANY CLAIM ARISING OUT OF, OR RELATED TO, THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE. PAULA'S CHOICE'S LIABILITY TO YOU IS LIMITED TO $100.
8) General Release. THE AFFILIATE RELEASES PAULA'S CHOICE, ITS OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, 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. THE 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." THE 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 PAULA'S CHOICE.
9) Audit Rights. The affiliate agrees that PCI, after written notice at least 10 (ten) days prior to an audit inspection, may conduct an appropriate audit of the affiliate's business operations relating to its performance under this Agreement, and the affiliate will cooperate with the reasonable requests and inquiries of PCI.
10) Indemnification. The affiliate shall defend, indemnify, and hold harmless PCI from and against any suit, proceeding, assertion, damage, cost, liability, and expense (including without limitation all court costs and attorneys' fees) incurred or otherwise paid as a result of a claim or claims by a third party against PCI or its affiliates, licensors, PCIs, officers, directors, employees, members and agents (arising from or in connection with this Agreement or the affiliate's application for membership) alleging liability by PCI for any actions or conduct by the affiliate or its sub affiliate in the course of performing services hereunder. The financial obligations of this indemnification shall be paid by the affiliate as and when incurred by PCI. The affiliate agrees to promptly notify PCI in writing of the claim, agrees to reasonably cooperate in the investigation and defense of the matter, authorizes PCI to have primary control of the defense of the action and negotiations for its settlement and compromise, and agrees to authorize PCI to resolve the matter on the terms PCI, within its sole discretion, feels are appropriate. However, the affiliate will have the right to approve any settlement or compromise that will adversely affect its rights to any materials subject to copyright, patent, trade secret or trademark protection and The affiliate may retain separate counsel to represent its interests.
11) Ownership and License Rights. The affiliate and its sub affiliates are granted a non-exclusive, limited and revocable license to use the trademarks of the products marketed and sold under this Agreement solely in accordance with the terms hereof and in accordance with law.
12 Termination. Either party may terminate this Agreement at any time with specific, written notice to the other party sent to the last known address of the party. It is effective upon sending it to the affiliate, and is effective upon receipt by PCI. PCI shall have the right to immediately terminate this Agreement if the the affiliate files bankruptcy, becomes insolvent, is liquidated, or is sued for misconduct. All residual payments due under this Agreement shall be paid out as set forth in this Agreement even after the term of this Agreement has ended unless this Agreement is terminated due to the misconduct of the affiliate or its sub affiliate.
13) General. Each party shall safeguard confidential information to a reasonable degree of care. Each party shall maintain in confidence all information marked, or reasonably appearing to be, confidential or proprietary unless the information is not confidential because the information was received from another party, is in the public domain, or is independently developed by the receiving party. This is the entire Agreement between the parties. No delay by either party shall waive rights under this Agreement. This Agreement is governed by, and to be construed in accordance with, the laws of the state of Washington, without regard to that state's conflict of laws provisions. The parties consent to the exclusive venue and jurisdiction of the state and federal courts for Seattle, Washington. No waiver of any breach of this Agreement shall be a waiver of any other provision of this Agreement, and no waiver shall be valid unless in writing and signed by the parties. If any provision of this Agreement is held invalid, such provision shall be restated to reflect, as nearly as possible, the original intention of the parties in accordance with applicable law and the remainder of this Agreement shall remain in full force. A party shall pay all reasonable costs and attorneys' fees incurred by the other party in enforcing the terms of this Agreement. This Agreement binds and inures to the benefit of each party's permitted successors and assigns and both parties may assign all rights to payments. This Agreement may be executed in counterparts. Facsimile signatures are acceptable as the original. Headings are for the convenience of reference only and do not alter the rights and obligations of the parties. Neither party shall be liable to the other for any delay or failure due to acts of God, war, transportation difficulties, labor strikes, natural disasters, riots, acts or omissions of vendors or PCI's beyond the control of the parties. Notices are deemed received upon delivery. The provisions of this Agreement are not for the benefit of any third party. Provisions of this Agreement that are intended to survive this Agreement shall survive. This Agreement may only be changed in accordance with a mutually executed Agreement. In the case of a conflict between this Agreement and the orders or attachments to this Agreement, the orders or attachments shall control. This Agreement has been mutually drafted and no presumption relating to ambiguities in favor of one interpretation over another due to the identity of the drafting party shall arise. The parties are independent and no joint venture, partnership, employment, or enterprise relationship is intended or shall arise from this Agreement. Neither party shall employ any employee of the other for the term of this Agreement. Notice as used in this Agreement shall mean that a specific notice fairly advising the party of the nature of the issue be sent, postage prepaid, by certified or overnight mail, to the appropriate individual at the address set forth below. The parties signing below represent that they are authorized to enter into this Agreement on behalf of the respective parties.
You acknowledge that you have read this Agreement and agree to all its terms and conditions. You have independently evaluated the desirability of participating in the program and acknowledge that this is the entire Agreement. By participating in this program, you understand that PCI may at any time (directly or indirectly) solicit customer referrals on different terms and operate competing web sites that are similar to yours, and you further agree not to disparage the reputation of PCI during or after the term of your program participation.
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