Affiliate Program Agreement
Beauty by Earth Affiliate Program Agreement
This Affiliate Program Agreement (“Agreement”) will govern the relationship between you (“you”) and Epic eTailers, LLC, d/b/a Beauty by Earth, a Texas limited liability company (“Beauty by Earth”) with respect to the Beauty by Earth Affiliate Program (“Program”) with respect to or in connection with Beauty by Earth products available at www.beautybyearth.com (the “BBE Site”). You and Beauty by Earth may also be individually referred to herein as “Party” and collectively as “Parties.”
If you have registered for or on behalf of an entity you are deemed to have accepted this Agreement on behalf of that entity.
TO USE OR ACCESS THE PROGRAM, YOU MUST AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT BY SIGNING AND SUBMITTING THE AFFILIATE APPLICATION. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU HAVE NO RIGHT OR AUTHORITY TO ACCESS OR USE THE PROGRAM OR EXERCISE ANY OTHER RIGHT IN CONNECTION THEREWITH.
In consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound, agree as follows:
You agree to use the BBE Site, the Program, the Materials, and any additional products and/or services offered by Beauty by Earth in connection with the Program only in accordance with this Agreement. Beauty by Earth reserves the right to make changes to the BBE Site, the materials, products, and services offered by Beauty by Earth, the Program, and this Agreement at any time without prior notice and the revised version of the Agreement shall become effective immediately after being posted on the BBE Site. Your continued use of the Program after any such modification thereof shall constitute your consent to such modification.
1. Joining the Beauty by Earth Affiliate Program
1.1. Registration. To use (or continue to use) the Program, you must provide Beauty by Earth with truthful, accurate and complete registration information. If any such information changes, you must immediately update your registration information.
1.2. Accurate Registration Information. Beauty by Earth has the right to verify the truth and accuracy of any registration information at any time. Please be advised that if any information is determined by Beauty by Earth to be misleading, inaccurate or untruthful, Beauty by Earth may restrict, deny or terminate your account and/or your access and use of the Program; Beauty by Earth may also withhold payment of any commissions and/or other fees that may be or become due or payable to you, and may assess charges against such amounts for Beauty by Earth’s activities in connection with the investigation and/or verification of such information and/or otherwise in accordance with this Agreement.
1.3. Eligibility. To join the Program, you must be either an entity or an individual who is at least 18 years old, and must provide at your expense your own computer equipment and internet access. One person or legal entity may not maintain more than one account. Accounts registered by “bots” or other automated methods are not permitted. Beauty by Earth may, in its sole discretion, refuse to register you as an Affiliate for the Program and/or terminate your participation in the Program at any time for any reason.
2. Defined Terms.
2.1. “Affiliate” means a person that participates in the Program and, through such participation and use of the appropriate Materials, desires or makes itself available to display, distribute or place Qualifying Links for compensation.
2.2. “Affiliate Account Area“ means the Program webpage(s) or other area of the Site having the URL designated from time to time by Beauty by Earth for use by Affiliates for the purpose of facilitating formation of Qualifying Links, accessing reports and otherwise participating in the Program.
2.3 “Content” means information, data, text, documents, software, music, sound, photographs, graphics and video.
2.4. “Intellectual Property Rights” means technology, templates, designs, Sites, domains, methodologies, processes, names, strategies, marks, logos, Content, documentation, training manuals, and other materials, as well as any and all patent, trade secret, trademark, copyright, moral rights, database rights and other intellectual property and proprietary rights, whether or not registered, therein and thereto.
2.5. A “link” means any software, software code, programming or other technology or method (or any combination of the foregoing) that (i) creates a hyperlink between two Sites, or (ii) otherwise causes a web access device to display to its user a “banner,” “button,” text-mention, word, phrase, logo or other textual or graphical material that, when activated by a person, results in a Site being served to such person or such person being able to electronically access, receive or obtain Content, products, services or other offerings from the linked Site.
2.6. “Materials” means materials provided by or on behalf of Beauty by Earth in the form of banner ads, media kits, image files, print guidelines, downloadable files, technology, software, reports and databases, as well as any other tools, services, and other resources that may be provided or otherwise made available from time to time.
2.7. “Site” means, as the context requires, either (a) one or more web pages, database, computer files, emails, scripts, software or other application, or other destination, together with supporting files and programming, that are on, provided, or accessible through the web or works on or in relation to the web, or (b) a person owning or operating any such Site, or (c) both. A person that owns or operates a Site may have offline businesses which would not preclude it from being a Site for the purposes of this Agreement.
2.8. A “tracked activity” means any type of pre-agreed or predefined activity or result in relation to a Qualifying Link. Tracked activities may include, by way of example, the serving of an image, impressions, click-throughs, the sale of products or services, the downloading of software, files or other items, the completion of an application, registration or other form, the opening of an account, membership enrollment, the printing of a coupon (for offline redemption) or any other kind of action, transaction or activity that can be tracked and reported upon.
3.1. Participation. Subject to the terms and conditions in this Agreement, and upon approval by Beauty by Earth, you have joined the Program as an Affiliate and may use the Materials made available to you by Beauty by Earth. Your participation is purely voluntarily and you may terminate your participation at any time. Beauty by Earth shall not be construed or deemed as having solicited, requested or procured you or your services to promote Beauty by Earth or its respective trade or business, or goods, products, property, or services.
3.2. Not a Supplier, etc. You are not and shall not, at any time, be deemed to be a vendor, supplier or provider of goods or services to Beauty by Earth. Your participation in the Program, use of any Materials or receipt of payment of any compensation under any Agreement shall not be construed or be deemed to be an inducement for, solicitation of you to provide any products or services to Beauty by Earth.
3.3. Prohibited Activities. In respect of or in relation to any Site, or Content created by or for you, (or portion thereof) used by you in connection with your participation in the Program, you may not engage in any activity that is or constitutes, or that involves, facilitates, advocates, promotes or otherwise includes any Prohibited Activity. “Prohibited Activity” means any of the following activities: (a) discrimination on the basis of race, ethnicity, gender, religion, sexual orientation, age or disability or any other unlawful basis under applicable law; (b) libelous, defamatory, threatening, harassing, tortious, or similarly abusive activities; (c) obscene, pornographic, violent, profane, sexually explicit or similar activities; (d) illegal gambling or investment, money-making opportunities or advice not permitted under law; (e) sale, export or use of illegal substances; (f) terrorism, sedition or other illegal activities; (g) offering of any MP3, MPEG and/or other proprietary materials for download, sale or otherwise, in any case without the permission of the owner of the Intellectual Property Rights or otherwise infringing the Intellectual Property Rights of any third party; (h) a conflict or violation of any law or regulation or any Intellectual Property Rights or other rights of any person or entity; (i) harm to minors in any way; or (j) fraudulent activities or impersonation of any person, including any Beauty by Earth representative, or misrepresentation of affiliation with any individual or entity.
3.4. Promotional Activities.You represent and warrant that all promotional means utilized by you (a) will not contain objectionable content (including, but not limited to, content that is misleading, illegal, and/or promoting illegal goods, services or activities), and (b) will not mislead others. You agree to promote the best interests of Beauty by Earth at all times in connection with the Program and to take no action that is likely to portray Beauty by Earth and/or Beauty by Earth’s products or services in a negative light or put Beauty by Earth and/or Beauty by Earth’s products or services into public disrepute, contempt, scandal or ridicule, or which insults or offends the community or any substantial organized group of the community, or which might tend to injure or damage the public image, reputation or success of Beauty by Earth or any of Beauty by Earth’s products or services, such determination to be solely Beauty by Earth’s.
4. Qualifying Links.
4.1. Definition. A “Qualifying Link” means any type or format of link that is provided or authorized by Beauty by Earth to be displayed, distributed or placed on or by a Site pursuant to this Agreement and which, through addition and/or use of any technology and/or methodology, can be tracked so that Beauty by Earth can monitor the impressions, click-throughs and/or other tracked activities achieved by the display, distribution and/or placement of such link, such as affiliate marketing, performance-based linking and online-to-offline tracking of tracked activities. The term “Qualifying Link” shall also refer to any equivalent link, mechanism or technology that, upon being activated, causes the same result as clicking on a Qualifying Link.
4.2. Use of Qualifying Links. Each Qualifying Link used by you must include, in unaltered form, the Beauty by Earth tracking code or URL in the manner and format made available or otherwise dictated by Beauty by Earth or its designees.
4.3. Valid Referrals Only. You will place or use Qualifying Links only with the intention of delivering the agreed upon tracked activities. You may not, nor knowingly permit any person to, activate or attempt to activate a Qualifying Link or inflate or attempt to inflate the amount of any sought-after or resulting tracked activities, including, but not limited to, the use of any method or technology that does not actually deliver an end user to the destination Site associated with such Qualifying Link.
4.4. Final and Binding Determinations. Beauty by Earth’s determination as to whether a tracked activity resulted from a Qualifying Link shall be final and binding on you.
4.5. Distribution of Qualifying Links. If you currently distribute, or plan to distribute, Qualifying Links on, to or through Sites other than those owned or operated by you, you hereby agree (i) that upon Beauty by Earth’s request from time to time, you will provide Beauty by Earth a list of Sites that are not owned or operated by you (together with any reasonably requested information about any such Sites) where Qualifying Links (and associated materials) have been, or are planned to be, distributed and/or used, and (ii) to provide prompt and reasonable cooperation to Beauty by Earth in responding to any requests, complaints, claims or other issues raised by Beauty by Earth regarding where and how Beauty by Earth’s Qualifying Links are distributed and/or used, including ceasing further distribution of such Qualifying Links (and associated materials), as appropriate. You agree that you will be liable for any breach of this Agreement that results from an act or omission of any third party Site that you use to display Qualifying Links. Beauty by Earth reserves the right to prohibit you from distributing Qualifying Links to or displaying Qualifying Links on third party Sites.
4.6. No Modification of Qualifying Links. You agree that you will not modify, circumvent, impair, disable or otherwise interfere with any tracking codes and/or other technology and/or methodology required or made available by Beauty by Earth to be used in connection with your use of any Materials, including the promotion and display of Qualifying Links. You further agree that you may not create your own Qualifying Links unless specifically authorized to do so by Beauty by Earth, in which case you agree to comply with any of Beauty by Earth’s applicable terms and conditions.
4.7. Termination of Qualifying Links. Beauty by Earth may terminate any Qualifying Links associated with the Program. You must remove any Qualifying Links after being notified of any termination. If Qualifying Links are not so removed, Beauty by Earth may deactivate your account and redirect or remove such links as it determines in its sole discretion, with or without compensation to you.
4.8. No Modification of Content. You may not modify, resize, reformat, edit or otherwise alter any Content provided by Beauty by Earth, unless expressly authorized to do so by Beauty by Earth. In such event, any such modifications shall be strictly limited in accordance with such Beauty by Earth’s specific authorization.
4.9. Discontinuing Use of Qualifying Links. You may at any time discontinue use of Qualifying Links by removing such Qualifying Links from your Site, with or without notice to Beauty by Earth, provided, however, you shall remain subject to the terms of this Agreement until you separately terminate this Agreement.
5.1. Revisions. You will have access to Materials made available to Affiliates, including reports that detail tracked activities generated by your Site and any corresponding commissions that you have earned. Beauty by Earth reserves the right to revise any report made available to you at any time if Beauty by Earth believes that the report contains an error or omission or otherwise requires an adjustment. Since the reports Beauty by Earth or its designee provides to you are the bases for calculating the compensation, if any, due to you from Beauty by Earth, any such revision may affect the amount of compensation to which you are entitled.
5.2. Data Furnished by the WordPress Affiliate WP Platform. In providing Materials, including giving you reports on your Program activities, Beauty by Earth relies on data provided or made available by the WordPress Affiliate WP Platform. Beauty by Earth is not obligated to confirm, and does not warrant or guarantee, the accuracy, truth or completeness of any data provided by the WordPress Affiliate WP Platform.Any reference in this Agreement to Beauty by Earth’s designees shall include, but not be limited to, WordPress and the WordPress Affiliate WP Platform.
5.3. Errors. If you believe that any of your Affiliate reports for any month contains errors in the data about your participation in the Program you must notify Beauty by Earth via email at email@example.com within 10 days after the end of that month so that, if possible, the matter may be resolved. If any Affiliate reports for any month are corrected or adjusted after the end of the month, then the period in which you must notify Beauty by Earth of errors in the corrected or adjusted data shall be 10 days after such correction or adjustment is posted. Any dispute between you Beauty by Earth about any error you report must be resolved by you and Beauty by Earth. In the event a dispute arises between you and Beauty by Earth regarding the amount of the funds that are due, or regarding who is entitled to receive the funds that are due, Beauty by Earth will be entitled to hold, and to decline to offer further processing services until such dispute is resolved. You agree that Beauty by Earth shall incur no liabilities to you in connection with any such dispute.
5.4. Backing-up Data and Other Precautions. Data transfer, conversion, processing and storage may be subject to human and machine errors, delays, interruptions and losses. Beauty by Earth and its designees shall not be liable for any such events or their consequences. You are solely responsible for adopting measures to limit the impact of such events, including backing up any reports or data provided to you. Beauty by Earth may, from time to time, with or without notice, change the time period covered, type and/or scope of current or historical data stored by Beauty by Earth and/or to which it provides you with access.
6.1. Payments.For a Beauty by Earth product sale to be eligible to earn a referral fee through the Program, the customer must click-through a Qualifying Link from your Site, email, or other communications to the BBE Site.When a web surfer clicks through your Qualifying Link, a cookie is set in their browser that contains your Affiliate code. Also, their IP address is tracked in the database along with your Affiliate code. When this person decides to buy a product, the script will look for this cookie and/or try to match their IP address to identify the Affiliate who will be awarded the commission. Visitors sent through your Qualifying Link may make a purchase later in time and the commission will still be awarded if the cookie is present in their browser and/or they are using the same IP address as the one logged in the database for up to 365 days after the initial cookie is set.
The current commission chart may be found at: https://bbe-headless.newbird.co/use-affiliate-area/. The commission structure is subject to change at Beauty by Earth’s discretion. We will notify all Affiliates 30 days prior to a commission structure change. Commissions earned under the previous structure will be paid under the previous structure. Commissions under the new structure will be paid under the new structure.
We will only pay commissions on Qualifying Links that are automatically tracked and reported by our systems. We will not pay commissions if someone says they signed up or someone says they entered a referral code if it was not tracked by our system.
We reserve the right to disqualify commissions earned through fraudulent, illegal, or overly aggressive, questionable sales or marketing methods.
6.2. Payment Terms. The fact that a compensation amount is reported for any tracked activity does not necessarily mean that a payment is due to you from Beauty by Earth, as payment may be subject to conditions established by Beauty by Earth, including policies regarding order cancellation, returned merchandise, receipt of pending credit card authorizations and/or chargebacks before payment is made.You further acknowledge that your entitlement to any compensation reported with respect to any tracked activity is subject to Beauty by Earth’s receipt of funds from the customer associated with the tracked activity giving rise to the purported compensation.
6.3. Payments by PayPal.Commissions are paid by PayPal and only by PayPal. We cannot send checks, credit, cash, or other payment methods. You are required to have a PayPal account to receive commissions. If you don’t have a PayPal account you can sign up for one at any time, but you will not be paid until you have one.
6.4. Payment Schedule.You’ll be paid roughly every week, provided you have earned a commission during the previous week. Payments are only made via PayPal.
6.5. Tax. You agree that you are solely responsible for any and all tax obligations, if any, due to all taxing authorities arising from or in connection with any compensation earned by you as a result of your participation in the Program.
7. Your Obligations.
7.1. No Sublicense, etc. You may not sublicense, rent, lease, sell, resell, outsource or service bureau any Materials, and any attempt to do so shall be null and void.
7.2. No Hacking, etc. You agree not to hack, abuse, adversely interfere with, infect with viruses, worms or other malicious or destructive code, or use or cause to be used in extraordinary and unreasonable or inappropriate ways or amounts, or make unauthorized modifications, reverse engineer, disassemble, decompile or attempt to derive source code of, any Materials, including any servers, bandwidth supply, equipment, software and other technological resources provided by Beauty by Earth.
7.3. No Spam. You may not use any Qualifying Links in any electronic message unless (a) you have received the express written authorization of Beauty by Earth use email or other electronic messages to promote it or its Qualifying Link and (b) any and all such electronic messages comply in all respects with this Agreement, and any and all applicable foreign, national, federal, state, local or provincial laws prohibiting or restricting the delivery of unsolicited electronic communications, also known as SPAM. Further, no electronic message initiated or sent by you or on your behalf may identify Beauty by Earth as a sender or sponsor of such electronic message.
7.4. No Interference. You may not, through downloadable or other technology, replace, intercept, redirect, block, alter or otherwise interfere with the full functioning and intended actions of any Qualifying Link that has been placed or distributed by another Affiliate including any action that would in any way prevent the behavior or result that would occur or would have occurred had an end user activated such Qualifying Link without your interference.
7.5. No Infringing Uses. You may not use any name, trademark, service mark, domain name or other Intellectual Property Rights of any third party in connection with your use of any Qualifying Links, the Program or any other Materials, in any way or for any purpose that infringes or violates any Intellectual Property Rights or other rights of such third party, whether for the purpose of increasing the levels of tracked activities attributable to your Qualifying Links or for any other purpose.
7.6. Fraud, Abuse, etc. You will not, and will not knowingly permit other persons to, engage in any fraudulent, abusive or illegal activity in connection with your participation in the Program.
7.7. No Solicitation. You may not use any Materials or the Program in connection with aggregating, soliciting or recruiting other Sites or other individuals or entities to form or join a marketing, advertising or similar network.
8. Grant of License to You
8.1. Your Use of Materials. Beauty by Earth grants to you a personal, non-exclusive, non-transferable, non-sublicenseable, revocable and limited license and right, subject to the terms of this Agreement, to: (a) use the Materials, to participate in the Program as an Affiliate; (b) access the Affiliate Account Area necessary for your participation in the Program; (c) solely for your use in connection with your participation in the Program, access reports made available to you by Beauty by Earth; and (d) use any Materials or other Content that is provided by Beauty by Earth solely for the purpose of creating and maintaining Qualifying Links in accordance with the terms of this Agreement, for such purpose, and no other purpose, but only in the form so provided.
8.2. Limitations. Except as provided in this Section 8, all other use of the Materials, including the Program, the Affiliate Account Area, any reports made available to you by Beauty by Earth and Content, including modification, publication, transmission, transfer or sale of, reproduction, creation of derivative works, distribution, performance, display, incorporation into another Site or mirroring is prohibited. Beauty by Earth may change the form and/or content of any report at any time without notice to you.
8.3. Use of the Beauty by Earth Name. This Agreement does not grant to you any license or right to use Beauty by Earth’s name or any of its logos or trade or service names or marks except to the extent any trade or service name is part of any code made available to you as part of a Qualifying Link. Any proposed press release or other public announcement by you regarding this Agreement or the Program or that refers to Beauty by Earth or any of its corporate affiliates, either directly or indirectly, shall require the prior written approval of Beauty by Earth. You agree that you shall not disparage Beauty by Earth, any Beauty by Earth designees, products or services, the Program or any other participants thereof.
8.4. Duration of License Rights; Reservation. The license set forth in Section 8.1 (Use of Materials) is valid only while you remain a member of the Program as an Affiliate and comply fully with this Agreement. Beauty by Earth may revoke any such license at any time by giving you notice by e-mail or in writing. Beauty by Earth reserves all rights that are not specifically granted to you by this Agreement.
9. Grant of Licenses to Beauty by Earth
9.1. Use of Your Content. Other than as provided below, in order to participate in the Program, you are not required to provide Beauty by Earth with any Content or other materials. Should you do so, by way of uploading, delivering or otherwise making available to Beauty by Earth any Content and/or other materials (including any Intellectual Property Rights therein and thereto) in connection with the Program or otherwise, you hereby grant to Beauty by Earth a non-exclusive, worldwide, royalty-free, sublicenseable perpetual license to use and store the same, including in relation to Beauty by Earth’s conduct of its business or performance of any services in relation to the Program.
9.2. Use of Your Personal Information. Beauty by Earth and its designees may use your personal information (i) for the purpose of facilitating your participation in the Program, which may include indexing your name and relevant information about your business in the Program Affiliate database, (ii) to facilitate payments to you, (iii) to contact you generally regarding your use of the Program (and you agree to receive email and other communications regarding the Program and your participation in the Program from Beauty by Earth and any of its designees Parties), (iv) for overall benchmarking and analysis of the program, and (v) to conduct one or more investigations to determine if you have violated any provision of this Agreement and as part of such investigation Beauty by Earth may share your personal information with a third party or a law enforcement agency that needs such information in order to support such investigation.
9.3. Use of Your Name. You agree that Beauty by Earth may refer to you by name in connection with the Program and/or the performance or provision of any Materials, including in communications sent to actual or prospective participants of the Program.
9.4. Disclosure of Business Relationship. Nothing in this Agreement shall prevent Beauty by Earth from making any public or private statements about your business relationship with Beauty by Earth and/or your participation in the Program.
9.5. Use of Your Logo. Beauty by Earth will not use any of your logos and/or other trademarks without your prior written approval, except as expressly provided in this Agreement. Any and all uses of your logos and/or other trademarks shall be in accordance with your specified usage and/or brand guidelines.
11. Representations and Warranties; Indemnification.
11.1. Representations and Warranties. You hereby represent, warrant, covenant, undertake and agree follows: (a) you have the legal right to conduct any business conducted by you including in respect of any Site(s) participating in the Program and to the extent that you are an individual, you are at least eighteen years of age; (b) any and all information you provide as part of the registration process or otherwise is and shall be truthful, accurate and complete, irrespective of any independent verification or other determination made by Beauty by Earth; (c) this Agreement has been duly and validly authorized, accepted, executed and delivered by you (or your authorized representative) and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms; (d) the performance by you of this Agreement does not and will not conflict with or violate (i) any law, rule, regulation, order, judgment, decree, agreement or instrument applicable to you, and (ii) if you are an entity, any provision of your certificate of incorporation or other organizational documents; and (e) without limiting any other provision of this Agreement, you and your corporate affiliates, officers, directors, employees, consultants, agents and representatives, and the activities of your business, and your use of the Program and/or Materials shall comply at all times with all applicable federal, state, provincial and foreign laws, ordinances, rules, regulations, orders, judgments and decrees.
11.2. Indemnification.You agree to defend, indemnify and hold harmless Beauty by Earth, and its directors, officers, employees, agents, subcontractors and representatives for and against any and all claims, actions, demands, liabilities, losses, damages, penalties, interest, judgments, settlements, costs and expenses (including reasonable attorneys’ fees) that directly or indirectly arise out of or are based on (a) any breach of any representation, warranty, or covenant made by you in this Agreement, (b) you engaging in any Prohibited Activity (c) any violation by you of any law, regulation or rule, (d) your inappropriate use of any other Materials, (e) your negligence or willful misconduct, and/or (f) any actual or alleged infringement by you of any Intellectual Property Rights or other rights of any person.Beauty by Earth may, at its election in its sole discretion, assume the exclusive defense and control of any matter otherwise subject to indemnification by you. Beauty by Earth may participate in the defense of all claims as to which it does not assume defense and control, and you shall not settle any such claim without Beauty by Earth’s prior written consent.
12.1. Termination. You or Beauty by Earth may, at any time, with or without cause, terminate this Agreement and your participation in the Program or use of any other Beauty by Earth Materials. You may affect such termination by sending written notice to Beauty by Earth at firstname.lastname@example.org.
12.2. Restricted Use. Alternatively, Beauty by Earth may, at any time, with or without notice, in its sole discretion, suspend, limit, restrict, condition or deny your access to or use of all or any part of the Program or any Beauty by Earth Materials.
12.3. Effect of Termination or Expiration. Upon any termination or expiration of this Agreement and/or your participation in the Program: (a) you shall immediately cease to use and remove from any and all Site(s) or other communications, whether or not owned or operated by you, any and all Qualifying Links and all other Content or Materials provided to you in connection with your participation in the Program or your use of any other Materials; (b) any and all licenses and rights granted to you under this Agreement shall immediately cease and terminate; (c) Beauty by Earth may terminate or, in its sole discretion, direct or redirect to any destination Site any and all Qualifying Links continued to be used by you without Beauty by Earth incurring any further liability or obligation to you; and (d) any and all confidential or proprietary information of Beauty by Earth that is in your possession or control must be immediately returned or destroyed, at Beauty by Earth’s sole discretion. If requested, you will certify in a writing signed by you or an authorized officer as to the return or destruction of all such confidential or proprietary information.
12.4. Fees. Beauty by Earth may withhold and offset any fees or other charges owing to Beauty by Earth or its designees against any and all compensation and/or other fees that are then unpaid to you. Following assessment of any fees or other charges owing to Beauty by Earth, and subject to Beauty by Earth holding any amount it determines in its sole discretion to be needed to support any of your indemnification and/or other obligations and/or liabilities under this Agreement, Beauty by Earth may retain any remaining monies. Such withholding of such compensation and/or other fees is in addition to any other rights and remedies that Beauty by Earth or its designees may have in contract, at law or in equity.
12.5. Survival. All rights or remedies arising out of a breach of any terms of this Agreement shall survive any such termination or expiration of this Agreement. Sections 3.2, 4.4, 4.6, 5.2, 5.3, 5.4, 7, 8.2, 9, 11, 13, and Sections 14 through 16, respectively and any provision which by its terms are intended to survive any expiration or termination of this Agreement, will survive any expiration or termination of this Agreement.
13.1. Confidential Information. You acknowledge that in connection with your participation in the Program you will be provided with confidential and proprietary data and information from time to time. Such confidential and proprietary data and information may be owned variously by Beauty by Earth or its designees and/or its or their suppliers or contractors. You will retain ownership of any data and information that you independently collect through your Sites without the use of Materials, provided that any data and information that may be provided by you to Beauty by Earth shall be deemed to be covered by the licenses granted to Beauty by Earth under this Agreement. Confidential information of Beauty by Earth includes, but is not limited to, information about tracked activities contained in reports, non-public information about Beauty by Earth or its designees and Materials made available to you by Beauty by Earth or its designees to facilitate your participation in the Program. You will keep confidential information, including reports, data and other information provided to you through the Affiliate Account Area or otherwise strictly confidential. Without Beauty by Earth’s prior written consent, you will not disclose any such confidential information to any third party or use any such confidential information other than solely as and to the extent required for you to perform under this Agreement. You may disclose any such confidential information only to your employees, officers, directors, lawyers or business advisors who need to know such information in order to perform their respective duties; provided that each such person has a legal or contractual obligation to maintain the confidentiality of such information.
13.2. Legally Required Disclosures. If you receive any document request, interrogatory, subpoena or other legal process (“Request”) that would, by its terms, require the disclosure of any confidential information protected by this Agreement, then promptly upon receipt thereof, and prior to making any response thereto, you will, unless otherwise prohibited by law or an order of a competent court, notify Beauty by Earth in writing of your receipt of such Request, and shall provide a copy thereof. Upon receipt of such notice, Beauty by Earth may seek to intervene in the matter in which the Request was issued to seek protection of the confidentiality provided for by this Section. Absent written agreement signed by Beauty by Earth, you may not make such disclosure absent an order or directive from the tribunal from which a Request was issued. Beauty by Earth will be entitled to seek and obtain injunctive relief preventing any breach of your obligations under this Section, without the need to show irreparable harm, and without the need to post a bond or undertaking.
Beauty by Earth hereby gives notice to you of the whistleblower protections of the Defend Trade Secrets Act. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and solely for the purpose of reporting or investigating a suspected violation of law; or is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except pursuant to court order. You agree to give notice to your employees of the protections of this provision with regards to any confidential information or trade secrets that are subject to this confidentiality agreement.
14. DISCLAIMER OF WARRANTIES.
THE PROGRAM AND ANY BEAUTY BY EARTH MATERIALS ARE PROVIDED “AS IS”, “WHERE IS” AND “AS AVAILABLE.”BEAUTY BY EARTH AND ITS DESIGNEES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY AS TO ACCURACY, ADVERTISERABILITY, COMPLETENESS, CURRENTNESS, SECURITY, NON-INFRINGEMENT, TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROGRAM OR ANY MATERIALS OR THAT YOUR USE OF THE SAME WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ANY QUALIFYING LINKS WILL BE AVAILABLE.
15. LIMITATION OF LIABILITY.
YOU AGREE THAT THE TOTAL LIABILITY OF BEAUTY BY EARTH AND ITS DESIGNEES, AND ITS AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBCONTRACTORS AND REPRESENTATIVES, TO YOU FOR ANY CLAIMS MADE UNDER THIS AGREEMENT WILL NOT, IN THE AGGREGATE, EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE AVERAGE OF COMMISSION FEES PAYABLE TO YOU DURING THE THREE MONTH PERIOD PRIOR TO ANY SUCH CLAIM, AND (B) USD$1,000.00. YOU RECOGNIZE AND ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY IS FAIR AND REASONABLE. NONE OF BEAUTY BY EARTH AND ITS DESIGNEES WILL BE LIABLE TO YOU (WHETHER IN CONTRACT OR BASED ON WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING LOSS OF REVENUE OR PROFITS, EVEN IF SUCH ENTITY WAS AWARE THAT SUCH DAMAGES COULD RESULT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIMITATION OF CERTAIN LIABILITIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF THIS SECTION 15 MAY NOT APPLY TO YOU.
16.1. Independent Contractors. The Parties are independent contractors and not partners, joint venturers. Nothing in this Agreement shall confer upon either Party any authority to obligate or bind the other in any respect or cause either Party to have a fiduciary relationship to the other.
16.2. Force Majeure. Beauty by Earth shall not be liable to you by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, strikes, lockouts or other industrial disputes, earthquakes, interruptions in telecommunications services or internet facilities, or any other cause which is beyond the reasonable control of Beauty by Earth, whether or not similar to the foregoing.
16.3. Assignability. You shall not assign or delegate any of the rights or obligations under this Agreement, and any such attempted assignment or delegation shall be void. Subject to the preceding sentence, this Agreement is binding on and inures to the benefit of the respective successors, heirs and permitted assigns of each Party.
16.4. Severability. If any portion of this Agreement is held by a court with jurisdiction to be invalid or unenforceable, the remaining portions hereof, shall remain in full force and effect. If any provision of this Agreement shall be judicially unenforceable in any jurisdiction, such provision shall not be affected with respect to any other jurisdiction.
16.6. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, U.S.A., without regard to its conflicts of law principles.
16.7. Informal Dispute Resolution. In the event of any dispute, controversy or claim arising out of or relating to this Agreement, the Parties agree, at the request of either Party, to appoint representatives to meet in good faith within 30 days of such request, in order to resolve the dispute.
16.8. Arbitration. Except for actions seeking equitable or injunctive relief, any dispute, controversy or claim arising out of or relating to this Agreement, including the existence, validity, interpretation, performance, breach or termination thereof or any dispute regarding non-contractual obligations arising out of or relating to this Agreement, that is not resolved pursuant to Section 16.7 (Informal Dispute Resolution) shall be referred to and finally resolved by arbitration administered by the American Arbitration Association (“Arbitrator”), in accordance with the rules and regulations of that Arbitrator. Such arbitration shall be conducted in Dallas, Texas in the English language. The Arbitrator shall establish procedures under which each Party will be entitled to conduct discovery and shall award to the prevailing Party in any such dispute the costs and expenses of the proceeding, including reasonable attorneys’ fees. The arbitration shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et. seq., and except as set forth below, the arbitral award shall be final, binding and incontestable and judgment thereon may be entered in any court of competent jurisdiction. The Arbitrator shall award only such damages as are permitted to be awarded pursuant to this Agreement. The Arbitrator must render its award within 30 days following the last hearing scheduled by the Arbitrator and at that time state the reasons for their award in writing. Unless otherwise agreed by the Parties and the appeal tribunal, the appeal shall be conducted at the place of the original arbitration. Notwithstanding the foregoing, either Party shall be entitled to apply to any court of competent jurisdiction for injunctive relief, without bond, to restrain any actual or threatened conduct in violation of this Agreement or to specifically enforce any Party’s obligations under this Agreement.
16.9. Entire Agreement; Third Party Beneficiaries. This Agreement is the entire agreement between the Parties pertaining to its subject matter, and supersedes all prior written or oral agreements (including prior versions of this Agreement and any conflicting confidentiality agreements), representations, warranties or covenants between the Parties with respect to such subject matter. You have not relied on any representation, warranty, collateral contract or other assurance (except those set out in this Agreement) made by or on behalf of Beauty by Earth before you entered into this Agreement, and you waive all rights and remedies which, but for this clause, might otherwise be available to you in respect of any such representation, warranty, collateral contract or other assurance. There are no third party beneficiaries of this Agreement. The headings of sections or other subdivisions of this Agreement will not affect in any way the meaning or interpretation of this Agreement.
16.10. Notices. Beauty by Earth may provide notices to you by posting notices or links to notices in your Affiliate Account Area. Notices to you also may be made via e-mail, regular mail, overnight courier or facsimile at your contact addresses of record for the Program. If you provide notice to Beauty by Earth, such notice shall be sent, postage prepaid by U.S. registered or certified mail or by reputable overnight courier, to: Beauty by Earth, 6101 Long Prairie Road, Suite 744, PMB 166, Flower Mound, TX75028, Attn: Affiliate Manager, email@example.com. Notices sent by email or facsimile, with or without electronic confirmation, will not be deemed to be valid unless actual receipt is confirmed in writing by an authorized personnel member of Beauty by Earth.
16.12. Class Action Waiver. Any proceedings to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. Neither you nor Beauty by Earth will seek to have any dispute heard as a class action, private attorney general action, or in any other proceeding in which either Party acts or proposes to act in a representative capacity. No arbitration or other proceeding will be combined with another without the prior written consent of all parties to all affected arbitrations or proceedings.