Omara Cosmetics Affiliate Program Agreement
This
Affiliate Program Agreement (“Agreement”) will govern the relationship
between you (“you”) and Epic eTailers, LLC, d/b/a Omara Cosmetics, a
Texas limited liability company (“Omara Cosmetics”) with respect to the Omara
Cosmetics Affiliate Program (“Program”) with respect to or in connection
with Omara Cosmetics products available at www.omaracosmetics.com (the “COMPANY Site”).
You and Omara Cosmetics 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 company Site, the Program, the Materials, and any additional
products and/or services offered by Omara Cosmetics in connection with the
Program only in accordance with this Agreement. Omara Cosmetics reserves the
right to make changes to the company Site, the materials, products, and
services offered by Omara Cosmetics, 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 company Site. Your continued
use of the Program after any such modification thereof shall constitute your
consent to such modification.
1. Joining the Omara Cosmetics Affiliate Program
1.1. Registration. To
use (or continue to use) the Program, you must provide Omara Cosmetics with
truthful, accurate and complete registration information. If any such
information changes, you must immediately update your registration information.
1.2. Accurate
Registration Information. Omara Cosmetics 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 Omara Cosmetics to be
misleading, inaccurate or untruthful, Omara Cosmetics may restrict, deny or
terminate your account and/or your access and use of the Program; Omara
Cosmetics 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 Omara Cosmetics’ 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. Omara Cosmetics 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 Omara Cosmetics 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 Omara Cosmetics
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. Participation.
3.1. Participation.
Subject to the terms and conditions in this Agreement, and upon approval by Omara
Cosmetics, you have joined the Program as an Affiliate and may use the
Materials made available to you by Omara Cosmetics. Your participation is
purely voluntarily and you may terminate your participation at any time. Omara
Cosmetics shall not be construed or deemed as having solicited, requested or
procured you or your services to promote Omara Cosmetics 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 Omara Cosmetics. 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 Omara
Cosmetics.
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 Omara Cosmetics
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 Omara Cosmetics at all times in connection with the Program and to
take no action that is likely to portray Omara Cosmetics and/or Omara
Cosmetics’ products or services in a negative light or put Omara Cosmetics
and/or Omara Cosmetics’ 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 Omara Cosmetics or any of Omara
Cosmetics’ products or services, such determination to be solely Omara
Cosmetics’.
4. Qualifying Links.
4.1. Definition.
A “Qualifying Link” means any type or format of link that is provided or
authorized by Omara Cosmetics 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 Omara Cosmetics 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 Omara Cosmetics tracking code or URL in the manner and
format made available or otherwise dictated by Omara Cosmetics 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. Omara Cosmetics’ 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 Omara Cosmetics’ request from time to time,
you will provide Omara Cosmetics 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 Omara Cosmetics in responding to any requests,
complaints, claims or other issues raised by Omara Cosmetics regarding where
and how Omara Cosmetics’ 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. Omara Cosmetics 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 Omara
Cosmetics 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
Omara Cosmetics, in which case you agree to comply with any of Omara Cosmetics’
applicable terms and conditions.
4.7. Termination
of Qualifying Links. Omara Cosmetics 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, Omara
Cosmetics 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 Omara Cosmetics, unless expressly
authorized to do so by Omara Cosmetics. In such event, any such modifications
shall be strictly limited in accordance with such Omara Cosmetics’ 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 Omara Cosmetics, provided, however, you shall remain subject to the terms of
this Agreement until you separately terminate this Agreement.
5. Reports
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. Omara Cosmetics reserves the
right to revise any report made available to you at any time if Omara Cosmetics
believes that the report contains an error or omission or otherwise requires an
adjustment. Since the reports Omara Cosmetics or its designee provides to you
are the bases for calculating the compensation, if any, due to you from Omara
Cosmetics, any such revision may affect the amount of compensation to which you
are entitled.
5.2. Data
Furnished by the Uppromote Affiliate Platform. In providing Materials,
including giving you reports on your Program activities, Omara Cosmetics relies
on data provided or made available by the Uppromote Affiliate Platform. Omara
Cosmetics is not obligated to confirm, and does not warrant or guarantee, the
accuracy, truth or completeness of any data provided by the Uppromote Affiliate
Platform. Any reference in this Agreement to Omara Cosmetics’ designees shall
include, but not be limited to, Uppromote and the Uppromote Affiliate
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 Omara
Cosmetics via email at affiliate@omaracosmetics.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 Omara
Cosmetics of errors in the corrected or adjusted data shall be 10 days after
such correction or adjustment is posted. Any dispute between you Omara
Cosmetics about any error you report must be resolved by you and Omara
Cosmetics. In the event a dispute arises between you and Omara Cosmetics
regarding the amount of the funds that are due, or regarding who is entitled to
receive the funds that are due, Omara Cosmetics will be entitled to hold, and
to decline to offer further processing services until such dispute is resolved.
You agree that Omara Cosmetics 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. Omara Cosmetics 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. Omara Cosmetics 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 Omara Cosmetics and/or to which it provides you with
access.
6.Payments.
6.1. Payments.
For a Omara Cosmetics 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 thecompany 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: **********. The commission
structure is subject to change at Omara Cosmetics’ 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 Omara
Cosmetics, as payment may be subject to conditions established by Omara
Cosmetics, 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 Omara
Cosmetics’ 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 Omara Cosmetics.
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 Omara Cosmetics 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 Omara Cosmetics 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. Omara Cosmetics 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 Omara Cosmetics; and (d) use any
Materials or other Content that is provided by Omara Cosmetics 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 Omara
Cosmetics 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. Omara Cosmetics may change the form and/or content of any report at
any time without notice to you.
8.3. Use
of the Omara Cosmetics Name. This Agreement does not grant to
you any license or right to use Omara Cosmetics’ 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 Omara Cosmetics or any of its
corporate affiliates, either directly or indirectly, shall require the prior
written approval of Omara Cosmetics. You agree that you shall not disparage Omara
Cosmetics, any Omara Cosmetics 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. Omara Cosmetics may revoke any
such license at any time by giving you notice by e-mail or in writing. Omara
Cosmetics reserves all rights that are not specifically granted to you by this
Agreement.
9. Grant of Licenses to Omara Cosmetics
9.1. Use
of Your Content. Other than as provided below, in order to participate in
the Program, you are not required to provide Omara Cosmetics with any Content
or other materials. Should you do so, by way of uploading, delivering or
otherwise making available to Omara Cosmetics 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 Omara Cosmetics a
non-exclusive, worldwide, royalty-free, sublicenseable perpetual license to use
and store the same, including in relation to Omara Cosmetics’ conduct of its
business or performance of any services in relation to the Program.
9.2. Use
of Your Personal Information. Omara Cosmetics 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 Omara
Cosmetics 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 Omara Cosmetics 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 Omara Cosmetics 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 Omara
Cosmetics from making any public or private statements about your business
relationship with Omara Cosmetics and/or your participation in the Program.
9.5. Use
of Your Logo. Omara Cosmetics 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.
10. Privacy.
You
agree that you will comply with all privacy and data security laws, rules and
regulations applicable to you in the regions in which you do business. You will
maintain a privacy policy on all Sites employed by you in connection with your
participation in the Program that complies with any and all applicable law. The
privacy policy shall, at minimum, be linked conspicuously from such Site’s home
page, with a link that contains the word “Privacy”, “Legal”, “Terms” or similar
language. Such privacy policy shall, in addition to the disclosures about your
privacy practices, identify the collection, disclosure and use of any
information of end users and such other disclosures required by applicable law.
Such privacy policy shall also provide information on your use of tracking
devices, including cookies and tracking devices enabled by Omara Cosmetics or
its designees at your request on your behalf. Your privacy policy will also
include information about the removal of cookies and other tracking devices.
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 Omara Cosmetics; (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 Omara Cosmetics, 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.Omara Cosmetics may, at its election in its sole
discretion, assume the exclusive defense and control of any matter otherwise
subject to indemnification by you. Omara Cosmetics 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 Omara Cosmetics’ prior written
consent.
12.Termination.
12.1. Termination.
You or Omara Cosmetics may, at any time, with or without cause, terminate this
Agreement and your participation in the Program or use of any other Omara
Cosmetics Materials. You may affect such termination by sending written notice
to Omara Cosmetics at affiliate@omaracosmetics.com.
12.2. Restricted
Use. Alternatively, Omara Cosmetics 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 Omara Cosmetics
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) Omara Cosmetics 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 Omara Cosmetics incurring any further
liability or obligation to you; and (d) any and all confidential or proprietary
information of Omara Cosmetics that is in your possession or control must be
immediately returned or destroyed, at Omara Cosmetics’ 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. Omara
Cosmetics may withhold and offset any fees or other charges owing to Omara
Cosmetics 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 Omara Cosmetics, and subject to Omara Cosmetics 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, Omara Cosmetics may retain any remaining monies. Such withholding of
such compensation and/or other fees is in addition to any other rights and
remedies that Omara Cosmetics 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.Confidentiality.
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 Omara Cosmetics 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 Omara Cosmetics shall be deemed to be covered by the licenses granted
to Omara Cosmetics under this Agreement. Confidential information of Omara
Cosmetics includes, but is not limited to, information about tracked activities
contained in reports, non-public information about Omara Cosmetics or its
designees and Materials made available to you by Omara Cosmetics 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 Omara Cosmetics’ 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 Omara Cosmetics in writing of your receipt of such
Request, and shall provide a copy thereof. Upon receipt of such notice, Omara
Cosmetics 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 Omara Cosmetics, you may not make such disclosure
absent an order or directive from the tribunal from which a Request was issued.
Omara Cosmetics 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.
Omara
Cosmetics 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 OMARA COSMETICS MATERIALS ARE PROVIDED “AS IS”, “WHERE IS” AND
“AS AVAILABLE.”OMARA COSMETICS 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 OMARA COSMETICS 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 OMARA COSMETICS 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. Miscellaneous.
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. Omara Cosmetics 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 Omara
Cosmetics, 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 Omara Cosmetics 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.
Omara Cosmetics 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 Omara Cosmetics, such
notice shall be sent, postage prepaid by U.S. registered or certified mail or
by reputable overnight courier, to: Omara Cosmetics, 6101 Long Prairie Road,
Suite 744, PMB 166, Flower Mound, TX75028, Attn: Affiliate Manager, affiliate@omaracosmetics.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 Omara Cosmetics.
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 Omara
Cosmetics 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.
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