PLEASE READ THESE BRAND PARTNER TERMS AND CONDITIONS VERY CAREFULLY BEFORE ACCEPTING TO BECOME A WOW Skin Science BRAND PARTNER!
BY ACCEPTING THESE TERMS (AS FURTHER DEFINED HEREIN), YOU EXPRESSLY AGREE TO BE BOUND BY, AND STRICTLY ADHERE TO, ALL OF THE TERMS AND CONDITIONS OF THIS BRAND PARTNER AGREEMENT BETWEEN YOURSELF (ON BEHALF OF YOURSELF OR THE BUSINESS THAT YOU REPRESENT) AND WOW Skin Science (“WOW Skin Science”). THESE TERMS WILL GOVERN YOUR RELATIONSHIP WITH WOW Skin Science AND YOUR PARTICIPATION IN THE WOW Skin Science BRAND PARTNER PROGRAM (THE “PROGRAM”). IF YOU DO NOT AGREE OR DO NOT UNDERSTAND ANY OF THE TERMS AND CONDITIONS CONTAINED HEREIN, PLEASE DO NOT ACCEPT THE TERMS. IF AT ANY TIME YOU NO LONGER WISH TO BE BOUND BY THESE TERMS, YOU MUST IMMEDIATELY PROVIDE WRITTEN NOTICE TO WOW Skin Science. As used in these Terms, “PARTNER”, “you” or “your” shall mean the individual who wishes to be a brand PARTNER for WOW Skin Science, and his/her employees, agents, business affiliates, and permitted successors and assigns. PARTNER and WOW Skin Science may be referred to hereinafter individually as a “Party” or collectively as the “Parties”.
By accepting these Terms and participating in the Program, PARTNER agrees as follows:
If selected by WOW Skin Science, you will become a brand PARTNER for the WOW Skin Science brand and for the products offered and sold by WOW Skin Science (“Products”). Your performance as WOW Skin Science PARTNER is subject to these brand PARTNER terms and conditions, and any separate agreement WOW Skin Science may require you to execute as well as any WOW Skin Science policies, standard operating procedures or guidelines provided to you from time to time (collectively, the “Terms”).
To become a WOW Skin Science brand PARTNER, you must meet the following eligibility criteria:
You have read, understand, and agree to be bound by the Terms;
You are eighteen (18) years of age or older;
You have read all Product warning labels and guidelines;
You have no medical condition that prevents you from taking any of the Products;
You maintain and actively use your own personal an account on at least one form of social media, including Facebook, Instagram, Twitter, Pinterest, Snapchat, Pinterest and YouTube, which have been approved by WOW Skin Science (collectively, “Approved Media”). Your accounts on Approved Media are referred to as “Accounts”;
You are in good standing with the Federal Trade Commission (the “FTC”); and
You are in compliance with all FTC guidelines, including but not limited to the FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (“FTC Guides”) and the terms and conditions of these Terms.
WOW Skin Science reserves the unconditional right to accept or deny any brand PARTNER who applies to be to a WOW Skin Science brand PARTNER.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF PARTNER
PARTNER represents and warrants that:
PARTNER has the power and authority to enter into these Terms;
PARTNER is not a party to any agreement or subject to any law that restricts PARTNER’s performance of PARTNER’s obligations hereunder;
PARTNER possesses all legal authorizations, permits and licenses necessary for the conduct of PARTNER’s obligations hereunder;
PARTNER has the right to assign the Content (as defined herein) to WOW Skin Science, as further set forth herein and, the Content will be original and does not and will not infringe upon any copyright, patent, trademark, right of publicity or privacy, or any other proprietary or other right of any person; and
PARTNER covenants and agrees as further provided herein, to market, promote and sell the Products in compliance with all applicable laws, regulations, rules, administrative guidelines, policies, codes, orders and ordinances.
In exchange for certain compensation, products and/or experiences, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, PARTNER shall use its best efforts to market and promote the WOW Skin Science brand and any WOW Skin Science Products and/ services on your Accounts (the “Services”), subject to the terms and conditions contained herein.
PARTNER shall perform the following Services:
PARTNER agrees that WOW Skin Science may post, re-post, embed, upload, and otherwise re-use any of your Content at any time, without compensation other than what is provided in the Terms. You acknowledge and agree that you are responsible for:
· Not using WOW Skin Science’s name, or any trademarks, copyrighted materials, or other WOW Skin Science Intellectual Property of WOW Skin Science in any advertising, social media, or in literature other than material published by WOW Skin Science, without first obtaining the express written permission of WOW Skin Science; and
RESTRICTIONS / PROHIBITIONS
PARTNER agrees and understands that if any Content posted by or associated with PARTNER is deemed offensive, inappropriate or used incorrectly, that PARTNER will be deemed, at the sole discretion of WOW Skin Science, ineligible to participate in the Program. PARTNER will then be disqualified from receiving any commission, recognition, communication or compensation from WOW Skin Science. PARTNER will also be terminated in the event it takes any of the following actions, each a material breach of the Terms:
· Makes any representations or warranties on behalf of WOW Skin Science, other than the ones contained in WOW Skin Science’s marketing and promotional information (under no circumstances should PARTNER make any unsubstantiated claims, including but not limited to claims that the WOW Skin Science Products are intended to diagnose, treat, cure or prevent any disease);
WOW Skin Science reserves the right to preview PARTNER’s Content from time to time upon request and reserves the right to request changes to and/or removal of Content in its sole discretion. WOW Skin Science has the right to monitor PARTNER’s Accounts at all times to ensure compliance with the Terms. WOW Skin Science may notify you of any changes to your Content or Accounts that WOW Skin Science feels should be made. Without limitation to WOW Skin Science’s rights as stated herein, WOW Skin Science may terminate your participation in the Program if you do not make any changes to Your Account that WOW Skin Science feels are necessary or appropriate. WOW Skin Science reserves the right to terminate your participation in the Program immediately and without notice to you should WOW Skin Science suspect that you have committed fraud or otherwise violated the Terms. If such fraud or abuse is detected, WOW Skin Science shall not be liable to you for any commissions for such fraudulent sales.
DISCLOSURE OF MATERIAL CONNECTION
As otherwise provided herein, PARTNER must include a disclaimer with all Content PARTNER shares publicly stating your “material connection” to WOW Skin Science and the fact that you have been compensated or otherwise incentivized to post the Content (e.g. the fact that your post is “sponsored by WOW Skin Science” (such as #sponsored) or an “advertisement” (such as #ad) or that PARTNER is an PARTNER of WOW Skin Science (such as #WOW Skin Science_PARTNER)). Such disclosure must be made in close proximity to any statements that PARTNER makes about WOW Skin Science or WOW Skin Science’s Products and must comply with any instructions or directions provided byWOW Skin Science and all applicable laws, regulations, administrative guidelines, codes, orders and ordinances, including but not limited to the FTC Guides. This disclosure should be clear and prominent enough for customers to view it when they are reading or otherwise viewing any of the Content. Further, under no circumstances shall PARTNER obscure, delete, modify or in any way alter the required FTC approved language. In addition, the customer should not be required to click on, scroll down or mouse over a link in order to view the disclosure. Please note that this disclosure is required regardless of any space limitations of the medium, where the disclosure can be made via hashtags, such as #sponsored, #paid or #ad.
Note that while WOW Skin Science may provide required disclosures and recommended promotional verbiage, WOW Skin Science shall not be responsible for any failure by PARTNER to comply with any applicable laws, regulations, administrative guidelines, codes, orders and ordinances or any failure by PARTNER to obtain all third party clearances and permissions with respect to Content PARTNER posts.
IF PARTNER FAILS TO MAKE THE REQUIRED DISCLOSURES, SUCH FAILURE SHALL BE DEEMED A MATERIAL BREACH OF THE TERMS THAT IS NOT CAPABLE OF CURE AND SHALL RESULT IN IMMEDIATE TERMINATION, WITHOUT ANY COMPENSATION OR COMMISSIONS OR LIABILITY TO PARTNER.
In consideration of the Services provided by PARTNER and the rights granted to WOW Skin Science with respect to the Content, as further provided herein, PARTNER will be compensated as follows:
Commissions will be paid out daily based on the previous day’s sales, as long as your commissions earned are at least twenty dollars ($20) (your commission will be paid out as soon as it reaches $20). Commissions will not be paid based on any sales or amounts for any reorders of customers or attributed to spam, credit card fraud, unauthorized use of your Promo Code, unauthorized use of WOW Skin Science’s trademarks, copyrights, logos or other intellectual property or returned Product. If a sale is canceled or refunded for any reason, any paid commission will be deducted from the amount owed to PARTNER and any subsequent payment. Commissions are counted and final numbers are deemed final at the sole discretion and decision of WOW Skin Science. WOW Skin Science also reserves the right to change the frequency and dates of the commission payout.
PARTNER should clearly advise followers/customers to use the PARTNER’s Promo Code to purchase WOW Skin Science Products in order for PARTNER to receive commission. While WOW Skin Science makes every reasonable effort to accurately track and pay commissions for all PARTNER sales, WOW Skin Science is not responsible nor shall be held liable for any technical difficulties, outside events, actions by other PARTNERs, or other uncontrollable events that may disrupt or interfere with WOW Skin Science’s ability to track sales or pay commissions. WOW Skin Science has the right to pay commissions to any other person, in its discretion.
PARTNER is solely responsible for any and all tax obligations, if any, due to any taxing authorities arising from or in connection with PARTNER’s commissions paid hereunder. WOW Skin Science reserves the right to withhold payment pending an investigation of suspected fraud or misrepresentation of associated commissions for orders or referrals that were obtained fraudulently or through misrepresentation.
PARTNER WILL BE ABLE TO TRACK COMMISSIONS AND PAYOUT VIA THE WOW Skin Science PARTNER DASHBOARD.
INTELLECTUAL PROPERTY RIGHTS
PARTNER’s Content and Attributes. For the Services which PARTNER is providing under these Terms, and without limiting WOW Skin Science’s ownership of the WOW Skin Science Intellectual Property (as defined below) as provided herein, PARTNER hereby grants WOW Skin Science the irrevocable, sublicenseable, worldwide right and permission to use any Content, in any manner, in whole or in part, and for any purpose in any and in any and all media, including and without limitation, on WOW Skin Science’s owned or controlled websites and platforms, social media, any advertising materials, publications, marketing materials, and/or presentations, and in any and all other media, in perpetuity. Content, including any statements, comments, posts and/or feedback that PARTNER provides may be paraphrased, amplified, shortened and/or put into conversational form.
PARTNER acknowledges that participation in the Services means WOW Skin Science has the irrevocable right to use PARTNER’s Content and include PARTNER’s name, likeness, image, photograph, distinctive appearance, gestures, mannerisms, biography, statements, avatar, and/or social media name and handle and any other indicia or other PARTNER attributes in any manner that WOW Skin Science determines supports the purposes of these Terms, including use in any media that accepts advertising or promotional content or communications.
PARTNER’s Rights to WOW Skin Science Intellectual Property and WOW Skin Science Platforms.WOW Skin Science hereby grants PARTNER, a non-exclusive, non-transferable, revocable, limited license to use and display WOW Skin Science’s trade name(s), logos and trademarks, slogans, domain names, trade dress, coupons, hypertext links, promotional codes, designs, works of authorship, and other advertising and marketing material (collectively, “WOW Skin Science Intellectual Property”) solely in the form and format provided to you through the Program, and solely for the purpose and in the manner specifically authorized by WOW Skin Science. PARTNER acknowledges WOW Skin Science’s exclusive right, title and interest in and to the WOW Skin Science Intellectual Property and the goodwill pertaining thereto, that any use of the WOW Skin Science Intellectual Property by PARTNER does not create any ownership, license or other right or interest in or to the WOW Skin Science Intellectual Property by PARTNER except as specifically set forth herein and that all use of the WOW Skin Science Intellectual Property by PARTNER shall inure to the benefit of WOW Skin Science. PARTNER agrees that it shall not, challenge, or assist in any challenge to, the validity or exclusivity of WOW Skin Science’s ownership of the applicable WOW Skin Science Intellectual Property.
Further, WOW Skin Science and its licensors retain all ownership rights in their proprietary platforms, software, websites and technology, including any updates, enhancements, modifications thereto or any back-end technology associated therewith (“WOW Skin Science Platforms”). PARTNER agrees not to:
EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE EXTENT PERMITTED BY LAW, THE WOW Skin Science PLATFORMS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. EXCEPT AS OTHERWISE SET FORTH HEREIN, WOW Skin Science DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE WOW Skin Science PLATFORMS INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Third Party Licenses. PARTNER shall be solely responsible for obtaining, in a form acceptable to and approved in writing by WOW Skin Science, any required licenses, permissions or approvals from third parties, contributors, and/or other affected rights holders with regard to third party content incorporated into the Content by PARTNER, as necessary for WOW Skin Science to make full and unrestricted use of the Content as set forth herein, including by way of example and without limitation, requiring all individuals appearing in any Content, to sign an authorization, consent and release form and granting to WOW Skin Science all license and publicity rights necessary for WOW Skin Science to make use of the name, likeness, image, photograph, distinctive appearance, gestures, mannerisms, biography, statements, avatar, and/or social media name and handle and other indicia of such individual contained in the Content. PARTNER will provide WOW Skin Science with copies of such consents upon its written request.
TERM AND TERMINATION
The term of these Terms shall begin upon WOW Skin Science’s acceptance of you as a brand PARTNER and will end when terminated by either Party in writing (the “Term”). The Terms may be terminated by WOW Skin Science immediately at any time, with or without cause, upon WOW Skin Science’s written notice to PARTNER; and by PARTNER upon thirty (30) days written notice by PARTNER toWOW Skin Science. In the event of cancellation or termination by PARTNER for any reason or by WOW Skin Science for a breach by PARTNER, in addition to the termination rights hereunder, WOW Skin Science shall be entitled to recover all costs (including attorney’s fees) in the enforcement of WOW Skin Science’s rights hereunder and, if PARTNER shall have been paid in advance, WOW Skin Science shall be entitled to a refund of any fees advanced to PARTNER; or, as applicable, PARTNER shall waive all rights it has hereunder, including but not limited to any rights to commissions otherwise earned prior to the applicable payment date. WOW Skin Science may terminate these Terms and all other agreements between WOW Skin Science and other brand PARTNERs if WOW Skin Science elects to cease business operations, dissolve WOW Skin Science or terminate its business. Upon the termination of these Terms, all limited licenses granted to PARTNER hereunder shall cease and you shall cease to hold yourself out as brand PARTNER of WOW Skin Science.
The rights and obligations related to Intellectual Property Rights, Confidentiality, Indemnification, Limitation of Liability and Miscellaneous shall survive any cancellation or termination of these Terms.
WOW Skin Science may disclose to you confidential or proprietary information and trade secrets from time to time (collectively, “Confidential Information”). WOW Skin Science’s Confidential Information includes, without limitation, all non-public or proprietary information and WOW Skin Science Intellectual Property, including, but not limited to specifications, ingredients and other proprietary information relating to the WOW Skin Science Products, sales figures, software passwords, customers, names and contact information, event format, presentation content, inventions, financial information, business plans, business processes, marketing plans, marketing strategies, marketing copy, financial projections, financial plans, personal information of employees and agents, sponsorship strategies, relationships with vendors, technical data, software designs, drawings, specifications, models, source code, object code, documentation, diagrams, flow charts, inventions, techniques, marketing, product, business and other future plans. You agree to hold all Confidential Information in the strictest confidence and not to disclose the Confidential Information to any third party. You agree that WOW Skin Science is (and will remain) the sole and exclusive owner of all right, title and interest in and to the Confidential Information, and all WOW Skin Science Intellectual Property. You further agree that you will not, and will cause any employees and other agents to not, use WOW Skin Science’s Confidential Information for the benefit of anyone other than WOW Skin Science. You agree not to use WOW Skin Science’s Confidential Information for any purpose except in the performance of your obligations under these Terms. You acknowledge and agree that the disclosure of the Confidential Information to third parties or the unauthorized use of the Confidential Information or WOW Skin Science’s Intellectual Property would cause substantial and irreparable harm and injury to WOW Skin Science’s ongoing business for which there would be no adequate remedy at law. Accordingly, in the event of any breach or attempted or threatened breach of any of the terms of this Section, WOW Skin Science shall be entitled to receive injunctive and other equitable relief, without limiting the applicability of any other remedies.
During the Term, and for a period of three (3) months thereafter, PARTNER agrees not to promote, market or sell nutritional products that are competitive with WOW Skin Science’s Products or services. PARTNER further agrees, during the Term and for a period of three (3) months thereafter, not to solicit any customers of WOW Skin Science with whom PARTNER had a relationship with during the Term to purchase nutritional products competitive with WOW Skin Science’s Products.
In providing the Services to WOW Skin Science, you acknowledge and agree that your relationship withWOW Skin Science is that of an independent contractor and it is expressly understood and agreed that nothing in these Terms is intended to create, and does not create, any employee, partnership, agency, joint venture or similar relationship between yourself and WOW Skin Science. You are solely responsible for all of you own income, social security, unemployment, sales, disability and any other applicable taxes arising out of your performance of the Services under these Terms, as required by applicable laws and regulations. You understand and agree that WOW Skin Science will not withhold or make payments or contributions on your behalf. You agree to indemnify and defendWOW Skin Science against any and all such taxes or contributions. You are also responsible for all costs, liabilities and expenses you may incur in connection with performing the Services under these Terms.
INDEMNITY; LIMITATION OF LIABILITY
Indemnity. PARTNER agrees to at all times defend, indemnify and hold harmless WOW Skin Science (including, without limitation, its parent entities, all related and affiliated entities and their respective directors, officers, shareholders, employees, agents and representatives) from and against any and all claims of whatever nature, including without limitation: (i) any violation of any law, regulation, rule, administrative guideline, policy, code, order and ordinance committed by you or your agents; (ii) your negligence or willful misconduct and/ or (iii) your participation in the Program, and/ or your breach of any obligation, representation or warranty set forth in the Terms. Your obligation to indemnify and defend WOW Skin Science as set forth in this Section shall include reimbursement of any and all legal fees and related costs and expenses incurred by WOW Skin Science in connection with any such claim.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WOW Skin Science OR ITS REPRESENTATIVES OR AFFILIATES BE LIABLE TO PARTNER OR ANY THIRD PARTY CLAIMING THROUGH PARTNER FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS) ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THESE TERMS REGARDLESS OF (I) WHETHER SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER OR NOT PARTNER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE TERMS, IN NO EVENT SHALL WOW Skin Science’S CUMULATIVE LIABILITY TO YOU ARISING OUT OF OR RELATED TO THE TERMS, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE THEORY, EXCEED 50% OF THE COMMISSIONS PAID TO PARTNER PURSUANT TO THE TERMS IN THE 1-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Disclaimer. WOW Skin Science MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING WOW Skin Science’S WEBSITE(S) OR ANY OTHER WEBSITES MAINTAINED AND OPERATED BY WOW Skin Science OR THE PRODUCTS OR SERVICES PROVIDED THEREON OR OTHERWISE OFFERED BY WOW Skin Science, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, WOW Skin Science MAKES NO REPRESENTATION THAT THE OPERATION OF ANY WOW Skin Science WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WOW Skin Science IS NOT LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
These Terms constitute the entire agreement between the Parties relating to this subject matter and supersedes all prior or contemporaneous oral or written agreements concerning such subject matter. In the event any provision, clause, sentence, phrase, or word hereof, or the application thereof in any circumstances, is held to be invalid or unenforceable, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder hereof, or of the application of any such provision, sentence, clause, phrase, or word in any other circumstances. The waiver by either Party of a breach of any provision of these Terms by the other Party shall not operate or be construed as a waiver of any other or subsequent breach by the other Party. WOW Skin Science may modify these Terms at any time and its sole discretion. These modifications may include, but not limited to changes in the amount of compensation, rate of commission fees, fee schedules, payment procedures, etc. If any of the modifications are unacceptable to you, your only recourse is to terminate your relationship with WOW Skin Science. If you continue providing Services following the posting of any modification or change to any of the Terms, it will be considered as your acceptance of the change. PARTNER may not subcontract or otherwise assign, transfer or delegate any of its rights, duties or obligations under these Terms. WOW Skin Science may assign, transfer or delegate its rights, duties and obligations hereunder to any third party acquirer of the business of WOW Skin Science, and following such an assignment, transfer and delegation, WOW Skin Science shall have no further duties or obligations hereunder. The Agreement shall be governed in accordance with the laws of the Province of Quebec and subject to the exclusive jurisdiction of the courts of the judicial district of Montreal, Quebec. All claims, disputes, or causes of action under these Terms, must be brought in an individual capacity, and shall not be brought as a class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. Each Party agrees to do all such acts, matters and things and shall sign or execute and deliver all such documents as may in the reasonable opinion of the other Party be necessary or expedient to further and more effectually carry into effect the provisions of these Terms.