AFFILIATE AGREEMENT PLEASE READ THE ENTIRE AGREEMENT. YOU MAY PRINT THIS PAGE FOR YOUR RECORDS. THIS IS A LEGAL AGREEMENT BETWEEN YOU AND BEND BEAUTY BY SUBMITTING THE ONLINE APPLICATION, YOU ARE AGREEING THAT YOU HAVE READ AND UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT YOU AGREE TO BE LEGALLY RESPONSIBLE FOR EACH AND EVERY TERM AND CONDITION.
This Agreement contains the complete terms and conditions that apply to you becoming an affiliate in the Bend Beauty Affiliate Program. The purpose of this Agreement is to allow HTML linking between your web site and the Bend Beauty web site(s). Please note that throughout this Agreement, “we”, “us”, BendBeauty.com, Bend Beauty and “our” refer to Bend Beauty Inc., and “you”, “your”, and “yours” refer to the affiliate.
2. Governing Law and Dispute Resolution
2.1 THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF NOVA SCOTIA, CANADA WITHOUT REGARD TO CONFLICTS OF LAWS AND PRINCIPLES THEREOF. ALL DISPUTES UNDER THIS AGREEMENT ARE SUBJECT EXCLUSIVELY TO THE COURTS OF NOVA SCOTIA SITTING AT HALIFAX.
3. Affiliate Obligations
3.1. To begin the enrollment process, you will complete and submit the online application located on the next page. We may reject your application at our sole discretion. We may cancel your application if we determine that your site is unsuitable for our Program, including (but not limited to) if it:
3.1.1. Promotes sexually explicit materials
3.1.2. Promotes violence
3.1.3. Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
3.1.4. Promotes illegal activities
3.1.5. Incorporates any materials which infringe or assists others to infringe on any copyright, trademark or other intellectual property rights or to violate the law
3.1.6. Is otherwise in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically or otherwise objectionable to us in our sole discretion.
3.1.7. Contains software downloads that potentially enable diversions of commission from other affiliates in our program.
3.1.8. You may not create or design your website or any other website that you operate, explicitly or implied in a manner which resembles our website nor design your website in a manner which leads customers to believe you are Bend Beauty or any other affiliated business.
3.2. As a member of Bend Beauty Affiliate Program, you will be given an HTML code that must be placed on your site. In order for us to accurately keep track of all guest visits from your site to ours, you must use the HTML code that we provide for each banner, text link, or other affiliate link we provide you with.
3.3. Bend Beauty reserves the right, at any time, to review your placement and approve the use of your links and require that you change the placement or use to comply with the guidelines provided to you.
3.4. The maintenance and the updating of your site will be your responsibility. We may monitor your site as we feel necessary to make sure that it is up-to-date and to notify you of any changes that we feel should enhance your performance.
3.5. It is entirely your responsibility to follow all applicable intellectual property and other laws that pertain to your site. You must have express permission to use any person’s copyrighted material, whether it be a writing, an image, or any other copyrightable work. We will not be responsible (and you will be solely responsible) if you use another person’s copyrighted material or other intellectual property in violation of the law or any third party rights.
4. Bend Beauty Rights and Obligations
4.1. We have the right to at any time to determine if you are following the terms and conditions of this Agreement. We may notify you of any changes to your site that we feel should be made, or to make sure that your links to our web site are appropriate and to notify you of any further changes that we feel should be made. If you do not make the changes to your site that we feel are necessary, we reserve the right to terminate your participation in the Bend Beauty Affiliate Program.
4.2. This Agreement will begin upon our acceptance of your Affiliate application, and will continue unless terminated hereunder.
5.1 Bend Beauty reserves the right to terminate this Agreement and your participation in the Bend Beauty Affiliate Program immediately and without notice to you should you commit fraud in your use of the Bend Beauty Affiliate Program or should you abuse this program in any way at the sole discretion of Bend Beauty. If such fraud or abuse is detected, Bend Beauty shall not be liable to you for any commissions for such fraudulent sales.
5.2 Either you or we may end this Agreement AT ANY TIME, with or without cause, by giving the other party written notice. Written notice can be in the form of mail, email or fax. In addition, this Agreement will terminate immediately upon any breach of this Agreement by you.
We may modify any of the terms and conditions in this Agreement at any time at our sole discretion. In such event, you will be notified by email 7 days prior to the new agreement coming into force. Modifications may include, but are not limited to, changes in the payment procedures and Bend Beauty Affiliate Program rules. If any modification is unacceptable to you, your only option is to end this Agreement. Your continued participation in Bend Beauty’s Affiliate Program following the posting of the change notice or new Agreement on our site will indicate your agreement to the changes.
7. Commissions and Payment
7.1 Bend Beauty uses WooCommerce and AffiliateWP to track all affiliate sales.
7.2 Bend Beauty offers affiliates a 25% commission on all first-time sales and 10% commission on reoccurring sales from the same customer for the lifetime of your affiliate program membership. A “first time sale” means the first time that the end customer has purchased the Bend Beauty product. Commission is on product price received by Bend Beauty only, and does not include taxes or any shipping costs.
7.3 Payment to the affiliate will be issued only once accrued commission amounts to greater than USD $100. Commission payments are processed and paid monthly in arrears, in accordance with Bend Beauty’s then current procedures. Calculation and reporting of commission amounts shall be deemed fully and finally accepted by you, with all claims irrevocably waived, unless Bend Beauty receives a written objection including an explanation of the claimed discrepancy, within 90 days from your receipt of payment or report thereof.
7.4 Payments to you are subject to withholding tax in accordance with law. You assume sole responsibility for timely reporting and payment of all taxes due, in all jurisdictions, on commissions received and you indemnify Bend Beauty for any failure to do so. Any payments to you hereunder are subject to you forthwith providing any documentation and information as Bend Beauty may require or request to satisfy governmental and/or taxation authorities in any jurisdiction. Bend Beauty shall have no obligation to pay commissions to you until any such information and documentation is fully provided to Bend Beauty.
8. Access to Affiliate Information
The Bend Beauty affiliate website offers the details any referral sales made by you, including traffic to the site through your affiliate links. You can also create your custom links there and download banner ads with tracking codes for your website.
9. Promotion Restrictions
9.1. You are free to promote your own web sites, but naturally any promotion that mentions Bend Beauty could be perceived by the public or the press as a joint effort. You should know that certain forms of advertising are always prohibited by Bend Beauty. For example, advertising commonly referred to as “spamming” is unacceptable to us and could cause damage to our name. Other generally prohibited forms of advertising include the use of unsolicited commercial email (UCE), postings to non-commercial newsgroups and cross-posting to multiple newsgroups at once. In addition, you may not advertise in any way that effectively conceals or misrepresents your identity, your domain name, or your return email address. You may use mailings to customers to promote Bend Beauty so long as the recipient is already a customer or subscriber of your services or web site, and recipients have the option to remove themselves from future mailings. Also, you may post to newsgroups to promote Bend Beauty so long as the news group specifically welcomes commercial messages. At all times, you must clearly represent yourself and your web sites as independent from Bend Beauty. If it comes to our attention that you are spamming, we will consider that cause for immediate termination of this Agreement and your participation in the Bend Beauty Affiliate Program. Any pending balances owed to you will not be paid if your account is terminated due to such unacceptable advertising or solicitation.
9.2. Bend Beauty’s Affiliate Program does Not permit the use of PPC, under any circumstance, for traffic generation.
9.3. Affiliate shall not transmit any so-called “interstitials,” “Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,” “Toolbar Installations and/or Add-ons,” “Shopping Wallets” or “deceptive pop-ups and/or pop-unders” to consumers from the time the consumer clicks on a qualifying link until such time as the consumer has fully exited Bend Beauty’ site (i.e., no page from our site or any Bend Beauty content or branding is visible on the end-user’s screen). As used herein a. “Parasiteware™” and “Parasitic Marketing” shall mean an application that (a) through accidental or direct intent causes the overwriting of affiliate and non affiliate commission tracking cookies through any other means than a customer initiated click on a qualifying link on a web page or email; (b) intercepts searches to redirect traffic through an installed software, thereby causing, pop ups, commission tracking cookies to be put in place or other commission tracking cookies to be overwritten where a user would under normal circumstances have arrived at the same destination through the results given by the search (search engines being, but not limited to, Google, MSN, Yahoo, Overture, AltaVista, Hotbot and similar search or directory engines); (c) set commission tracking cookies through loading of Merchant site in IFrames, hidden links and automatic pop ups that open Bend Beauty’ site; (d) targets text on web sites, other than those web sites 100% owned by the application owner, for the purpose of contextual marketing; (e) removes, replaces or blocks the visibility of Affiliate banners with any other banners, other than those that are on web sites 100% owned by the owner of the application.
9.4 Because we have many customers that leave our shopping cart to search for “coupons” or “deals”, and then return to the shopping cart through the affiliate link of a “coupon” or “deals” website or search engine, we do NOT accept applicants who plan on promoting Bend Beauty through a “coupon” or “deals” site. Affiliates who violate this agreement will be immediately terminated and risk losing their commission.
9.5 Bend Beauty’s Affiliate Program does not permit the use of traffic generation via the use of Amazon.com or any of Amazon’s web properties. This includes Amazon product ads and any kind of Amazon merchant account.
10. Grant of Licenses
10.1. We grant to you a non-exclusive, non-transferable, revocable right to (i) access our site through HTML links solely in accordance with the terms of this Agreement and (ii) solely in connection with such links, to use our logos, trade names, trademarks, and similar identifying material (collectively, the “Licensed Materials”) that we provide to you or authorize for such purpose. You are only entitled to use the Licensed Materials to the extent that you are a member in good standing of the Bend Beauty Affiliate Program. You agree that all uses of the Licensed Materials will be on behalf of Bend Beauty and the good will associated therewith will inure to the sole benefit of Bend Beauty. You agree that the Licensed Materials (including the “Bend” trademark) are the sole property (including intellectual property) of Bend Beauty and its licensors.
10.2. Each party agrees not to use the other’s proprietary materials in any manner that is disparaging, misleading, obscene or that otherwise portrays the party in a negative light. Each party reserves all of its respective rights in the proprietary materials covered by this license. Other than the license granted in this Agreement, each party retains all right, title, and interest to its respective rights and no right, title, or interest is transferred to the other.
Bend Beauty MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING Bend Beauty SERVICE AND WEB SITE OR THE PRODUCTS OR SERVICES PROVIDED THEREIN, ANY IMPLIED WARRANTIES OF Bend Beauty ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WE MAKE NO REPRESENTATION THAT THE OPERATION OF OUR SITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
12. Representations and Warranties
You represent and warrant that:
12.1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms;
12.2. You have the full right, power, and authority to enter into and be bound by the terms and conditions of this Agreement and to perform your obligations under this Agreement, without the approval or consent of any other party;
12.3. You have sufficient right, title, and interest in and to the rights granted to us in this Agreement.
13. LIMITATIONS OF LIABILITY:
WE WILL NOT BE LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY ENTITLEMENT TO DAMAGES SHALL BE LIMITED SOLELY TO ANY COMMISSIONS OWING. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL Bend Beauty’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL COMMISSIONS PAID AND OWING TO YOU, IN THE SIX MONTH PERIOD PRIOR TO THE DATE THAT YOUR CLAIM AROSE UNDER THIS AGREEMENT.
You hereby agree to indemnify and hold harmless Bend Beauty, and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys’ fees) (any or all of the foregoing hereinafter referred to as “Losses”) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of the affiliate trademarks infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, (iii) any claim related to your site, including, without limitation, content therein not attributable to us, or (iv) violation of any law or the legal rights of others by you.
All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked “Confidential,” will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
16.1. You agree that you are an independent contractor, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between you and Bend Beauty. You will have no authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site or any other of your site or otherwise, that reasonably would contradict anything in this Section.
16.2. Neither party may assign its rights or obligations under this Agreement to any party, except to a party who obtains all or substantially all of the business or assets of a third party.
16.5. You may not amend or waive any provision of this Agreement unless in writing and signed by both parties.
16.6. This Agreement represents the entire agreement between Bend Beauty and you, and shall supersede all prior agreements and communications of the parties, oral or written.
16.7. The headings and titles contained in this Agreement are included for convenience only, and shall not limit or otherwise affect the terms of this Agreement.
16.8. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
17. Prohibition against solicitation activities by New York State resident affiliates, and affiliates of states with similar laws
As a condition of its participation in the Bend Beauty Affiliate Program, Affiliate agrees that its solicitation activities on behalf of Bend Beauty within the State of New York (or the applicable state) shall be limited to providing a link on Affiliate’s website to Bend Beauty’s own website. Affiliate acknowledges that under current New York State law, further solicitation and promotional activities by Affiliate within New York State may subject Bend Beauty to liability for collecting New York State sales tax on all sales to New York customers. Therefore, as a condition of participation in the Bend Beauty Affiliate Program, Affiliate is prohibited from engaging in any solicitation activities in New York State (or such applicable state) intended to refer potential customers to Bend Beauty, including, but not limited to: distributing flyers, coupons newsletters and other printed materials, or electronic equivalents of such materials; engaging in verbal solicitation, including in-person referrals or initiating telephone calls; and sending emails intended to refer customers to Bend Beauty.