| Home | Apply | Our Creative | Our Datafeed | Newsletters | Blog | Affiliate Education | Affiliate Agreement | FAQ | Contact |
|
|
|||||||||||
|
||||||||||||
 |
BuyBeauty Affiliate Agreement Revised January 10, 2007 BuyBeauty ("BuyBeauty" "we," or "us") and affiliate ("Affiliate or "you") agree to the terms of this Agreement, concerning the generation of sales on BuyBeauty's website through Affiliate's advertising. By becoming an Affiliate in the BuyBeauty Affiliate program (the "Program"), you hereby acknowledge and agree to these terms and conditions. If Affiliate is a corporation, limited liability company or any other type of business entity, the term "Affiliate" includes any officer, executive, member, employee, consultant and/or agent of Affiliate's business entity. Any Affiliate who is in violation of this Agreement will be subject to account termination. 1. Introduction 1.1 As described below, BuyBeauty grants Affiliate a license to use certain BuyBeauty advertising pieces on Affiliate's website, and BuyBeauty will pay Affiliate commissions on sales generated by users that come to the BuyBeauty website by clicking on BuyBeauty advertising on Affiliate's website. 2. Affiliate Representations 2.1 By submitting the online application to become an Affiliate (the "Application"), you are confirming that you: a) have fully read this Agreement; b) understand all of the terms of the Agreement; c) are 18 years of age or above and there is no legal reason why you cannot enter into a binding contract, and if Affiliate is acting on behalf of a corporation or other entity, Affiliate warrants there is no legal reason that such entity cannot enter into a contract and that Affiliate is authorized to act on behalf of such entity; d) own and operate an Internet website where you can place advertisements and generate traffic; and e) agree to be fully bound by the Agreement. 3. Modifications 3.1 This Agreement is subject to change at any time, in our sole discretion, and such changes are effective upon their posting at the Program Website. Changes may include, without limitation, changes in the commissions structures, payment procedures and other Program-related policies. Bookmark this page and check it frequently as it is up to Affiliate to refer to this page for any amendments and/or changes to this Agreement. BuyBeauty will notify Affiliate on the Program Website seven (7) days prior to any change. Affiliate's continued participation in the Program signifies Affiliate's consent to the Agreement and any amendments or changes in effect at the time. 4. Enrollment in the Program 4.1 To begin the enrollment process, Affiliate must submit a complete and accurate Application. BuyBeauty will evaluate Affiliate's Application and promptly notify Affiliate of the Application acceptance or rejection via the e-mail address that Affiliate supplies as a part of the Application. To qualify as an Affiliate, Affiliate must own and operate an Internet website directed to consumers in the United States where Marketing Pieces, as defined in Section 8, may be posted. A complete and accurate Application requires every field be populated with accurate data. Should Affiliate's application be accepted, Affiliate will open and manage its account through the website located at affiliates.BuyBeauty.com (the "Program Website"). 4.2 Affiliate understands and agrees that BuyBeauty may reject Affiliate's Application and/or terminate participation in the Program at any time and for any reason, in BuyBeauty's sole discretion. Such reasons may include, without limitation:
A. BuyBeauty believes that Affiliate is in breach of this Agreement or any other agreement Affiliate has with BuyBeauty; B. BuyBeauty believes that the Affiliate website ("Affiliate Website") is unsuitable for the Program for any reason including, without limitation, that the Affiliate Website contains material that could be considered unlawful, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable; 4.3 As part of the Application process, Affiliate will be assigned a user ID number and password, which may be cancelled by BuyBeauty at any time. Affiliate will use the user ID and password to access its online Affiliate Account ("Affiliate Account"). Affiliate agrees not to transfer or resell the user ID and/or password, or otherwise provide access to its Affiliate Account and/or Program to any third party. If Affiliate has reason to believe that the Affiliate Account is no longer secure, Affiliate must promptly notify BuyBeauty, so that BuyBeauty may change Affiliate's password by updating Affiliate's account information in the BuyBeautyaffiliate interface. AFFILIATE IS SOLELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF ITS USER ID AND PASSWORD AND FOR ANY AND ALL USE OR ACTIVITIES THAT ARE CONDUCTED THROUGH THE AFFILIATE ACCOUNT. 5. Affiliates 5.1 BuyBeauty grants to Affiliate a non-exclusive, non-transferable, limited license to promote and market BuyBeauty on the Internet in accordance with this Agreement. There is no tiered Affiliate status under the Program and, accordingly, an Affiliate shall not have sub-affiliates under this Agreement. This license is further detailed in Section 8. 5.2 BuyBeauty may use the personal information of an Affiliate in any manner consistent with our Privacy Policy, which is hereby incorporated into, and made part of, this Agreement. For additional information regarding BuyBeauty's use of information collected from Affiliate, please refer to the BuyBeauty Privacy Policy. 5.3 Affiliate may not engage in any non-Internet based form of marketing or any marketing where the encoded Affiliate-specific hyperlinks cannot be tracked by BuyBeauty, without written permission from BuyBeauty. 6. Term and Termination 6.1 The term of this Agreement will begin upon BuyBeauty's written acceptance of Affiliate's Application and will end when terminated by either party. Affiliate may terminate this Agreement at any time, with or without cause, by giving BuyBeauty written notice of termination via e-mail. BuyBeauty may terminate this Agreement and Affiliate's license hereunder with or without cause and without notice at any time. Affiliate is only eligible to earn commissions on billings generated during the term of this Agreement. Upon any termination of this Agreement, any and all licenses granted hereunder shall immediately expire. 6.2 Notwithstanding anything contained herein to the contrary, upon BuyBeauty's termination of this Agreement for a breach of contract by Affiliate, BuyBeauty may not pay any commissions otherwise due to Affiliate at the time of termination including, without limitation, amounts that are being held pending the meeting of a Payment Threshold (as described in Section 7), disputed commissions and/or any other unpaid commissions at the time of termination. 6.3 Upon termination, Affiliate agrees to immediately destroy any and all BuyBeauty-related records, materials, copies, notes, suppression lists (if used herein) and documentation in their possession and to certify to BuyBeauty in writing within ten (10) days that such destruction has occurred. 6.4 Obligations that, by their nature, would survive any termination of this Agreement including, without limitation, Sections 6, 10, 13, 14, 15, 16 and 18, shall survive any termination of this Agreement. 7. Commissions 7.1 BuyBeauty shall pay commissions to Affiliate on sales made on the BuyBeauty website from users coming to the BuyBeauty website by clicking on BuyBeauty advertising placed on the Affiliate Website. Commissions shall be paid to Affiliate at a rate of seven percent (7%) of sales. The commissions rate applies to sales amounts after the application of any coupons, and the sales amount used will not include sales tax or shipping and handling charges. BuyBeauty may, in its sole discretion, change the commissions rate at any time for some or all Affiliates. The most recent commissions rates and/or other payment terms will be published at the Program Website, so Affiliate should continue to check for any such changes. Unless BuyBeauty and Affiliate agree otherwise in writing, commissions shall be paid in the form of a check in United States dollars and mailed to the physical mailing address Affiliate supplies in its Application. 7.2 Commissions shall be paid to the respective Affiliate within thirty (30) days of the last day of a given calendar month, for qualifying commissions generated in that calendar month. 7.3 Commissions are based solely upon statistics that BuyBeauty compiles on a regular basis, which are verified and checked against our month end reports (the "Data"). Affiliate understands and agrees that the Data is dispositive and fully binding upon Affiliate in determining payable commissions. Please be advised that the statistics appearing on Affiliate's online Affiliate Account page are intended for informational purposes only. The online Affiliate Account statistics may be inaccurate and/or incomplete, and Affiliate may not rely upon such statistics until they are reconciled with BuyBeauty's month end reports. 7.4 BuyBeauty requires an Affiliate to provide a W-9, or similar information, as a condition to receiving any commission payments. 7.5 Notwithstanding anything contained herein to the contrary, no commission payments will be issued to Affiliate for any amount less than $25 US Dollars (the "Payment Threshold"). All such amounts below the Payment Threshold shall be held, aggregated and paid to an Affiliate only when the Payment Threshold has been reached. BuyBeauty will not pay commissions on any billings that occur: i) before the Affiliate is accepted into the Program; or ii) after termination of this Agreement. 7.6 BuyBeauty reserves the right to withhold and/or cancel commission payments due and owing to an Affiliate at any time, in our sole discretion, when we believe that the Affiliate is in breach of this Agreement. If BuyBeauty determines that commissions were earned through any fraudulent means in BuyBeauty's sole discretion, all such commissions will be reversed. 7.7 BuyBeauty reserves the right, without limitation, to deduct an amount equal to any chargebacks, refunds, deductions and/or any other type of adjustments, plus any and all associated fees and charges (collectively, "Adjustments"), incurred by BuyBeauty in connection with purchases generated by Affiliate hereunder. If BuyBeauty incurs any Adjustments, the respective Affiliate connected to such Adjustment agrees that BuyBeauty may deduct such amounts from any future commissions earned by Affiliate. 8. Marketing Pieces 8.1 BuyBeauty will make available to Affiliate marketing pieces created for use with the Program. In particular, BuyBeauty will supply BuyBeauty creatives and/or BuyBeauty banner advertisements (collectively, the "Marketing Pieces"). Each Marketing Piece contains a validation tracking mechanism permitting BuyBeauty to identify the respective Affiliate using such Marketing Piece. In addition, each Marketing Piece contains a hyperlink that will direct individuals to the proper pages of the BuyBeauty website. 8.2 Affiliate will use the Marketing Pieces in Internet marketing on Affiliate's website. The Marketing Pieces will allow users of the Affiliate Website to go to BuyBeauty's website and purchase products from BuyBeauty and may contain logos, copy, graphics and/or animation. BuyBeauty may withdraw, change or revise the content of the Marketing Pieces at any time, in its sole discretion, and Affiliate agrees to use only the most recent version of any Marketing Piece provided by BuyBeauty. If any particular Marketing Pieces need to be taken off the Affiliate Website, or there are new Marketing Pieces for Affiliate to use, Affiliate will be notified by BuyBeauty via email, at the email address supplied in Affiliate's Application, and by notice posted on the Program Website. 8.3 BuyBeauty grants Affiliate a non-exclusive, non-transferable, revocable and limited license to:
A. use the Marketing Pieces on the Affiliate Website, including the designated BuyBeauty logos, trade names, product names, trademarks and similar identifying material relating to BuyBeauty therein, for the sole purpose of performing Affiliate's rights and duties hereunder; and 8.4 Affiliate may not alter, modify and/or otherwise change the Marketing Pieces in any manner, whatsoever. Affiliate may only use Marketing Pieces supplied by BuyBeauty. Use, or the attempted use, of any other marketing materials in connection with the Program may result in the termination of this Agreement. BuyBeauty must approve all creative and landing pages of Affiliate and will not pay commissions for traffic or hits developed from unapproved creative or landing pages. 8.5 Affiliate agrees not to use the Marketing Pieces in any manner that is disparaging or that otherwise portrays BuyBeauty in a negative light, including but not limited to placement of Marketing Pieces on a website or in an email with inappropriate content, including but not limited to, use of alcohol, tobacco, or illegal substances; nudity, sex, pornography, or adult-oriented content; expletives or inappropriate language; content promoting illegal activity, racism, hate, "spam," mail fraud, gambling, sweepstakes, pyramid schemes, or investment opportunities or advice not permitted under law; content that is libelous defamatory, infringing, false, misleading, contrary to public policy, or otherwise unlawful; advertising of products competitive with those offered by BuyBeauty; or any other content that may bring BuyBeauty negative publicity. BuyBeauty reserves the right to periodically monitor Affiliate's use of the Program and the Affiliate Website at any time without notice for the purpose of determining compliance with this Agreement and may randomly request that Affiliate provide all reasonable and necessary information required by this Agreement to determine such compliance. 8.6 BuyBeauty retains the right to approve and direct any and all uses of Marketing Pieces at all times. Each Affiliate agrees that BuyBeauty may, in its sole discretion, direct the placement of Marketing Pieces on the Affiliate Website. Affiliate further agrees that it will fully comply with our directions regarding same. Affiliate may not engage in any marketing practices that may be viewed as deceptive and/or misleading. 9. E-mail Marketing Policy/CAN-SPAM Compliance 9.1 Unless otherwise indicated in writing by BuyBeauty, Affiliates MAY NOT USE E-MAIL MARKETING TO PROMOTE BuyBeauty. If Affiliate is interested in promoting BuyBeauty via email marketing, please contact BuyBeauty at BuyBeauty@converseon.com. If e-mail marketing is permitted by the express written permission of BuyBeauty, Affiliate must comply with the following provisions of this Section concerning e-mail transmissions. 9.2 Affiliate represents and warrants that, to the extent e-mail marketing is permitted, it will comply with all applicable state and federal laws, rules and regulations (including the Can-Spam Act of 2003, as amended from time to time) with respect to e-mail marketing. Affiliate acknowledges that any failure to comply with this E-mail Marketing Policy may, in BuyBeauty's sole discretion, result in the immediate termination of its Affiliate status and the forfeiture of any and all rights to any commissions owed to the Affiliate by BuyBeauty. 9.3 Without limiting the generality of the foregoing, when performing e-mail marketing of any kind on behalf of any BuyBeauty, Affiliate represents and warrants that Affiliate shall:
A. deliver commercial e-mail only to those recipients: i) who have given Affiliate direct and/or explicit consent to receive e-mail advertising from Affiliate, as defined under applicable law, and have not revoked such consent as of the date that the commercial e-mail was transmitted to such recipient; or (ii) with whom Affiliate has a preexisting business relationship, as defined under applicable law, and have not unsubscribed to receive e-mail advertising as of the date that the commercial e-mail was transmitted to such recipient; B. refrain from falsifying e-mail header and transmission information (including, without limitation, source, destination and routing information); 9.4 Suppression Lists: With respect to any suppression list generated through the Program, whether provided by BuyBeauty or Affiliate, Affiliate agrees to:
A. use such suppression list, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination of this Agreement; 10. Adware and Spyware 10.1 Affiliate is solely responsible for complying with all laws, including, without limitation, the "Spy Act" (currently HR 29) if and when passed, and best practices regarding the use of software and programs commonly known as "spyware" and/or "adware" as those terms are generally understood. Spyware and adware include, but are not limited to, trojans, web bugs, advertiser software, monitoring software and any surveillance type software or program that monitors, reports, tracks, mines or provides Affiliate or any third party with user information such as browsing habits, click information or other user data. 10.2 BuyBeauty has a zero-tolerance policy on the use of spyware or adware. However, if Affiliate would like to offer certain programs to users, where there is express notice to users, users' consent and the ability for users to successfully and permanently remove such programs, BuyBeauty may allow such offerings after it has reviewed any such proposition by Affiliate and given Affiliate express written permission to make such offers. 10.3 Affiliate, or any third party working on behalf of or at the instruction of Affiliate, shall hold harmless and indemnify BuyBeauty for any breach of this Section or for any liability incurred by BuyBeauty as a result of any spyware or adware originating from or on behalf of Affiliate. 11. Search Engine/Coupon Policies: 11.1 As a condition of Affiliate's acceptance of the Agreement, Affiliate will refrain from any paid search marketing in relation to the Program, unless Affiliate has express written consent from BuyBeauty to do so. Such authorization will be determined by BuyBeauty on a case by case basis. Use of third party trademarks, including those of BuyBeauty, and Program information in pay per click search engines also is prohibited without the express written consent of BuyBeauty. Please email BuyBeauty@converseon.com for more information. 11.2 Even if Affiliate receives permission from BuyBeauty to engage in paid search marketing, such permission will not allow Affiliate to drive traffic or attempt to drive traffic to the Program by bidding on any BuyBeauty competitors' trademarks. 11.3 BuyBeauty may, from time to time and at its sole discretion, provide some or all of its Affiliates with special promotions, coupons, sweepstakes or contests (the "Promotions") to offer to their users. BuyBeauty will provide eligible Affiliates with adequate notice and authorization so that they may make any and all appropriate changes to the Affiliate Website. BuyBeauty also runs periodic Promotions of its own. It will be a breach of this Agreement to utilize any promotion, promotion code, coupon or other promotional opportunity that is not specifically authorized by BuyBeauty for the Program and explicitly authorized for Affiliate's use, and BuyBeauty reserves the right to withhold or disallow payment of commissions for violations under this Section. 12. Display of Marketing Pieces 12.1 Affiliate shall not display or endorse Marketing Pieces on the Affiliate Website in such a way that may mislead or deceive users into clicking on the link for any purpose other than the purpose of being referred to BuyBeauty's website, so that it is reasonably likely that it will result in a bona fide transaction for BuyBeauty. 13. Representations and Warranties: Affiliate hereby represents and warrants as follows: 13.1 This Agreement has been duly and validly executed and delivered by Affiliate and constitutes Affiliate's legal, valid and binding obligation which is fully enforceable against Affiliate in accordance with its terms. 13.2 Affiliate is duly licensed, authorized and certified by all applicable governmental and regulatory authorities to perform Affiliate's rights and duties pursuant to this Agreement. 13.3 Affiliate will comply with all applicable state and federal laws, rules and regulations (including the Can-Spam Act of 2003, as amended from time to time, if applicable), with respect to the Program. 13.4 Affiliate understands and agrees that BuyBeauty will enter into similar agreements with other Affiliates that may be in direct competition with Affiliate. 13.5 Affiliate understands and agrees that Affiliate has independently evaluated the desirability of participating in the Program and that Affiliate has not relied on any representation and/or warranty other than those set forth in this Agreement. 13.6 The execution, delivery and performance by Affiliate of this Agreement will not conflict with or violate: (i) any provision of law, rule or regulation to which Affiliate is subject; (ii) any order, judgment or decree applicable to Affiliate; (iii) any provision of Affiliate's corporate by-laws or certificate of incorporation; or (iv) any agreement or other instrument applicable to Affiliate. 13.7 Affiliate's performance under this Agreement will not: (i) be fraudulent, deceptive and/or misleading; (ii) invade the right of privacy or publicity of any third person; (iii) involve any libelous, obscene, indecent or otherwise unlawful material; and (iv) otherwise infringe upon the rights of any third parties including, without limitation, those of copyright, patent, trademark, trade secret or other intellectual property right, false advertising, unfair competition, defamation, invasion of rights of celebrity, violation of any anti-discriminatory law or regulation, or any other right of any person or entity. 13.8 To the best of Affiliate's knowledge, there is no pending or threatened claim, action or proceeding against Affiliate. 13.9 Affiliate will be solely responsible for the development, operation and maintenance of the Affiliate Website and for any and all materials that appear on the Affiliate Website. Such responsibilities include, without limitation: i) the technical operation of the Affiliate Website and all related equipment; ii) creating and posting content, descriptions and references on the Affiliate Website; iii) the accuracy and propriety of materials posted on the Affiliate Website; iv) ensuring that materials posted on the Affiliate Website do not violate or infringe upon the rights of any third party and are not defamatory, obscene, libelous, harmful, illegal or otherwise offensive; and v) ensuring that the Affiliate Website complies with all applicable laws. 14. Publicity 14.1 Affiliate agrees that BuyBeauty may use Affiliate's name (if Affiliate is an individual), Affiliate's company name (if Affiliate is a corporation or the like), Affiliate's likeness and/or logo, the Affiliate Website address and any associated information in our marketing materials and press releases, without compensation to Affiliate. 14.2 Affiliate shall not create, publish, distribute or permit any written material that makes reference to BuyBeauty without first submitting such material to BuyBeauty and receiving BuyBeauty's prior written consent, which may withhold in BuyBeauty's sole discretion. 15. Proprietary Rights 15.1 The content, organization, graphics, design, compilation, magnetic translation, digital conversion, software and other matters related to the Program, Marketing Pieces, Program Website are protected under applicable copyright, trademark and other proprietary (including, without limitation, intellectual property) rights owned by BuyBeauty. The use, copying, redistribution and/or publication by Affiliate of any part of the Program, Marketing Pieces or Program Website, other than as contemplated hereunder, is strictly prohibited. BuyBeauty retains any rights not granted herein. 15.2 Affiliate does not acquire any ownership rights to the Program, Marketing Pieces or Program Website. The availability of the Program, Marketing Pieces and Program Website does not constitute a waiver of any rights related thereto by BuyBeauty. 15.3 BuyBeauty shall be deemed the sole owner of any and all consumer information, including but not limited to personally identifiable information, obtained through your marketing efforts associated with the Program. Affiliate has no rights in or to such consumer information and may not use such consumer information for Affiliate's own benefit other than as set forth in this Agreement. 16. Indemnification 16.1 Affiliate agrees to indemnify, defend and hold BuyBeauty, its parents and subsidiaries, and each of their respective officers, partners, Affiliates, managers, employees, agents and attorneys (collectively, the "Covered Parties"), harmless 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:
A. Affiliate's breach of this Agreement and/or any representation or warranty contained herein; 17. Disclaimers/Limitation of Liability 17.1 THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. BuyBeauty AND THE COVERED PARTIES HAVE NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE'S USE OF, OR INABILITY TO USE, THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES. IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, BuyBeauty AND THE COVERED PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, LITIGATION OR THE LIKE), WHETHER BASED IN BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, BuyBeauty EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED BY LAW, CUSTOM OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE NEGATION OF DAMAGES SET FORTH ABOVE IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN BuyBeauty AND AFFILIATE. THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES WOULD NOT BE PROVIDED TO AFFILIATE WITHOUT SUCH LIMITATIONS. BuyBeauty MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO ANY RESULTS OBTAINABLE THROUGH THE PROGRAM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY AFFILIATE FROM US THROUGH THE PROGRAM, PROGRAM WEBSITE OR MARKETING PIECES SHALL CREATE ANY WARRANTY, REPRESENTATION AND/OR GUARANTEE NOT EXPRESSLY STATED IN THIS AGREEMENT. 17.2 ALL RESPONSIBILITY AND/OR LIABILITY FOR ANY AND ALL DAMAGES CAUSED BY, AND/OR THROUGH, THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES IS EXPRESSLY DISCLAIMED. AFFILIATE UNDERSTANDS AND AGREES THAT PARTICIPATION IN THE PROGRAM AND ACCESS AND/OR USE OF THE PROGRAM WEBSITE AND MARKETING PIECES IS DONE SOLELY AT AFFILIATE'S OWN DISCRETION AND AT AFFILIATE'S OWN RISK. AFFILIATE IS ALSO SOLELY RESPONSIBLE FOR ANY USE, OR ALLEGED USE, OF THE PROGRAM, PROGRAM WEBSITE AND MARKETING PIECES THAT MAY INFRINGE UPON A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHTS. 17.3 UNDER NO CIRCUMSTANCES SHALL BuyBeauty AND THE COVERED PARTIES BE LIABLE TO AFFILIATE OR ANY THIRD PARTY (INCLUDING, WITHOUT LIMITATION, ANY CONSUMERS OBTAINING SERVICES THROUGH AFFILIATE'S MARKETING EFFORTS) IN ANY MANNER WHATSOEVER ARISING FROM AFFILIATE'S PARTICIPATION IN THE PROGRAM. THE MAXIMUM AGGREGATE LIABILITY OF BuyBeauty AND THE COVERED PARTIES TO AFFILIATE AND/OR ANY THIRD PARTY UNDER ANY AND ALL CIRCUMSTANCES SHALL BE EQUAL TO THE AMOUNTS AFFILIATE HAS RECEIVED THROUGH THE PROGRAM. 18. Confidentiality 18.1 For purposes of this Agreement, the term "Confidential Information" shall mean any non-public information of BuyBeauty that BuyBeauty designates as being confidential or which, under the circumstances surrounding disclosure, reasonably ought to be treated as confidential. Confidential Information shall not include information that is or becomes generally known through no fault of the receiving party. Affiliate shall maintain the confidentiality of Confidential Information and refrain from disclosing any Confidential Information to any other party at any time, even after termination of this Agreement. Affiliate will not use any Confidential Information except as expressly permitted by, or as required to achieve the purposes of, this Agreement. Affiliate agrees to use its best efforts to protect Confidential Information. 19. Force Majeure 19.1 Affiliate agrees that BuyBeauty will not be liable, or be considered to be in breach of this Agreement, on account of BuyBeauty's delay or failure to perform as required under the terms of this Agreement as a result of any causes or conditions that are beyond BuyBeauty's reasonable control and that BuyBeauty is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). 20. Miscellaneous. 20.1 This Agreement shall be treated as though it were executed and performed in Illinois and shall be governed by and construed in accordance with the laws of the State of Illinois (without regard to conflict of law principles). Should a dispute arise concerning the terms and conditions of this Agreement, or the breach of same by either party hereto, the parties agree to submit their dispute for resolution by arbitration before the American Arbitration Association in Chicago, Illinois, in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association. Any award rendered shall be final and conclusive to the parties and a judgment thereon may be entered in any court of competent jurisdiction. Nothing herein shall be construed to preclude any party from seeking injunctive relief in order to protect its rights pending an outcome in arbitration. 20.2 Should any part of this Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. 20.3. Affiliate agrees that any unauthorized and/or unlawful use of the Program would result in irreparable injury to BuyBeauty for which money damages would be inadequate. In such event, BuyBeauty shall have the right, in addition to other remedies available to it pursuant to this Agreement, to immediate injunctive relief against Affiliate without the need to post a bond. Nothing contained in this Agreement shall be construed to limit any legal remedies available to BuyBeauty. 20.4 BuyBeauty and Affiliate are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative or employment relationship between the parties. Affiliate has no authority to make or accept any offers or representations on behalf of BuyBeauty. Affiliate is prohibited from holding itself out as anything other than an independent contractor, including but not limited to making any statement, whether on the Affiliate Website or otherwise, that could possibly contradict anything in this Section. 20.5 This Agreement constitutes the entire Agreement between BuyBeauty and Affiliate. To the extent that anything in or associated with the Program Website is in conflict or inconsistent with this Agreement, this Agreement shall take precedence. This Agreement is incorporated into all other agreements Affiliate has with BuyBeauty. Notwithstanding the foregoing, any additional express authorizations or modifications made by BuyBeauty subsequent to this Agreement, including but not limited to modifications pertaining to commissions or authorizations pertaining to e-mail marketing or adware and/or spyware, shall be controlling to the extent they conflict with the Program Website and/or this Agreement. 20.6 BuyBeauty's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. 20.7 Any attempt by any individual, whether or not an Affiliate, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Program, is a violation of both criminal and civil law, and BuyBeauty will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity.
20.8 This Agreement will be binding on, inure to the benefit of and be enforceable against the parties and the successors and assigns of BuyBeauty. Affiliate is not permitted to assign or otherwise transfer any rights and obligations pursuant to this Agreement. Any attempt to do so may result in the immediate termination of this Agreement.
|
||
Copyright © 2006-2007 BuyBeauty |
|||