Affiliate Program Terms
LAST UPDATED: February 1, 2018
Please read these Terms & Conditions (the "Agreement") carefully before enrolling in the affiliate program.
The following Terms and Conditions (Terms) will be effective if and only if Omiana, doing business under Epic Beauty, Inc., of Texas (henceforth referred to as "Omiana," "Company," "we," "us," and "our," each term also encapsulating our affiliated networks [e.g., social media; blogs], subsidiaries, and Parent Company), accepts your application to enroll in the Affiliate/Ambassador Program. By enrolling as an Affiliate or Ambassador ("Affiliate" or "Ambassador") in the program ("Program"), you agree to be bound and abide by such terms and conditions as stated here and on Omiana.com's general site Terms and Privacy Policy. Once you submit your application you are bound by the terms of these agreements. To use or access the Program, you must agree to be legally bound by the terms and conditions of this agreement. If you do not agree to these terms and conditions, you have no right or authority to access or utilize the Program or exercise any other right in connection therewith.
When filling out the application/relevant forms you must provide accurate and complete information. Participation in the Program is to legally advertise our website to receive commission on referred customers. For bloggers, we will evaluate each application and you will be notified of your acceptance or rejection. We may reject your application if we determine that your website is unsuitable for any reason. For customers without websites but using unique Omiana-generated codes to credit you commissions (see process details), we reserve the right to accept or decline into the Program for any reason.
If you have registered for or on behalf of an entity (e.g., LLC or other company structure), you are deemed to have accepted this Agreement on behalf of such entity and personally, under your own identity. To the extent you operate within a network of third parties, then you shall be responsible to ensure that such third parties comply with the terms of this Agreement and the terms of the applicable Program. If you do not agree to the terms of this Agreement in its entirety, you are not authorized to (a) register as an Affiliate; (b) utilize the Program; and/or (c) use the Site, in any manner or form whatsoever. We may, in our sole discretion, refuse to register You as an Affiliate and/or terminate Your participation in the Program (as defined below) at any time for any reason. To the extent that the terms of the Program are in conflict or inconsistent with this Agreement, this Agreement shall take precedence and control.
The terms and conditions of this agreement will begin when your application has been submitted and will end when your Affiliate account has been terminated. The terms may be modified by us at any time. You agree to use the Site, the Program, and any additional products and/or services offered by Omiana only in accordance with this Agreement. We reserve the right to make changes to the Site, Program, and this Agreement at any time and the revised version of the Agreement shall become effective after being posted on the Site and our emailing you of such changes. Your continued use of the Site and/or Service after any such modification thereof shall constitute Your consent to such modification. If you do not agree with modifications, you may ask to have your affiliation cancelled.
EXCHANGE. As an eCommerce medium, Omiana facilitates affiliate marketing programs via either (1) affiliation with third-party providers (e.g., Refersion) and/or possibly (2) our own technology and network on the Internet. An Affiliate Program is where an Affiliate (1) utilizes a unique code Omiana generates for them to tie sales back to them through word-of-mouth and social media referrals; and/or (2) operates one or more web site(s) (domain or portion of a domain within the Internet) and/or subscription e-mail list(s) to earn financial compensation ("Commissions") for sales generated from such unique codes and/or site affiliations and/or e-mail list through a click made by a customer (each, a "Customer") on a web site or content operated by an advertising company. Said click must connect to the customer's sale. We, the advertising company, compensate the Affiliates in accordance with this Agreement.
In consideration of the mutual covenants and agreements contained herein, the parties, intending to be legally bound, hereby agree as follows:
Registration. To use the Site and Program as an Affiliate, You must provide us with truthful, accurate, and complete registration information. If any such information changes, You must immediately contact us to update Your registration information or do so on your affiliate dashboard, the link emailed to you after registration acceptance.
Valid Information. Affiliate agrees to provide Omiana with valid information about Affiliate's promotional methods and to maintain up-to-date account information, including contact information, websites used, when applicable, ownership, and any other information requested by Omiana. We have the right to confirm and check the truth and accuracy of any registration information at any time. Please note that the potential step of verification of Your registration information, specifically, name, address, and other pertinent information, against a third party database may be considered under certain laws to constitute a "credit check" and You hereby consent to any such verification process. Notwithstanding that, your participation in the Program as a Affiliate does not depend on Your credit worthiness or financial stability whatsoever. If any information is determined by us to be misleading, inaccurate or untruthful, we may restrict, deny, or terminate Your account, Your access and use of the Program and the Site, and/or any benefits derived from Your participation in the Program, including the withholding or forfeit (in whole or in part) of any Commissions to Omiana.
Affiliate Link & Referral Fees. If your affiliation is approved, you may advertise your affiliate link using graphics and text links online. You may use graphics and texts provided to you by us or create your own as long as it is appropriate (see condition 10). You may not use your own link to make purchases. You may not knowingly allow others to repeatedly use your affiliate link to earn commission.
For a product sale to be eligible to earn a referral fee, the customer must (1) input Affiliate's code that acts as a discount code for the consumer and ties sales back to the Affiliate or, for Affiliates with websites, (2) follow a Referral Link from your Affiliate Site to our Site, select and purchase eligible products using our online ordering system, accept delivery of the products, and remit full payment to us (“Qualified Purchase”). If a customer leaves our website but returns within 30 days to purchase products initially viewed through a Referral Link such a purchase will be deemed a Qualified Purchase and we will pay a referral feel. However, note that we will not pay referral fees in cases where customers make an un-traceable follow-up purchases after using a Referral Link, in any time-frame: For instance, if a customer uses a different computer or device to make a purchase or if a customer deletes or disables cookies on their computer or device, it is impossible to reliably connect such follow-up purchases to use of a Referral Link.
Affiliates and employees of Affiliates may not purchase products through the Referral Links on your Affiliate Site for personal use, resale, or commercial use of any kind. We reserve the right to not pay referral fees for any purchases determined to be in violation of this prohibition and/or the right to retain and offset referral fees for any such sales that we may discover at any time.
Tracking Affiliate Fees: Company may, from time to time in its sole discretion, apply an estimated amount of Affiliate's Commissions if there is a verified error in Affiliate's tracking code. If a consumer did not properly follow the route to earn the Affiliate a Commission but has connection with the Affiliate, please remind them to use their coupon code and/or utilize Affiliate's site banner(s), as Company will not credit commissions that do not go through the verifiable channel (i.e., use of code; banner; etc.).
Affiliate links and codes are good for six months. Links and codes can be renewed when Omiana leadership reviews ambassador activity and perceives at least two actions, such as Omiana mentioned within a blog post, on Instagram, Facebook, etc., per six months from the influencer.
Referral Fee Schedule. Referral fees ("Commissions") you earn will be in amounts established by us and posted on our Site in a Commissions Schedule ("Schedule"), incorporated into this Agreement for reference. You will be able to review the Schedule on your account dashboard. Company shall provide Affiliates with access to tracking and reporting tools via links sent in email and to other various support services that may be updated from time to time on the Site. Support for the Program is available by contacting Company and reaching the appropriate person or support services. We reserve the right to modify the Schedule at any time in our sole discretion and will notify Affiliates accordingly. Commissions shall be calculated as a percentage of revenues derived by us from Qualified Purchases, excluding revenues associated with shipping, handling, gift-wrapping, taxes, and any other service charges. Commissions will only be available for products we designate.
Referral Fee Payment. Company will pay Commissions on a monthly basis. All Commissions will be paid in US Dollars ($US). Approximately 45 days following the end of each calendar month, Company will send Affiliate a PayPal payment for the referral fees earned on Qualified Purchases of products that were shipped during that month. Commission is calculated as a percentage of all sales for which we have received payment in full less any returns or credits. If products that generated referral fees are returned by a customer (for any reason), we will deduct the corresponding referral fee from payment (subsequent payment if need be). Upon termination of this Agreement, and for a period of one year thereafter, if returns generate a negative balance we will issue you a bill for returned product referral fees.
Payment Threshold: if the referral fees payable to you for any calendar month are less than $25.00, Company will hold those referral fees until the total amount due is at least $25.00 or until this Agreement is terminated. Upon termination of this Agreement, all Commissions due to Affiliate, even amounts below the Payment Threshold, will be paid during the next billing cycle.
Every Affiliate must have a unique, valid taxpayer identification number, valid Social Security Number, or other applicable unique government identification. Affiliate shall be responsible for all applicable taxes related to their Commission payments from Program.
Links and Promotions. To accurately track sales and referral fees, we will provide you with special website links back to our Site (“Referral Links”) to be used on your Affiliate Site and/or a unique code to tie sales back to you. For those with sites, you must ensure that each of the links between your Affiliate Site and our Site uses all formats and embedded codes provided by our Referral Links. We will not be responsible for any error in the placement or deployment of Referral Links on your Affiliate Site, even if such errors result in any loss or reduction of referral fees. We shall have no obligation to calculate or pay referral fees that would have been generated in the absence of errors in the use or deployment of Referral Links. Each Referral Link will be in a form that displays images, words, and other content determined by us. Through your account dashboard you may create as many Referral Links as you wish.
Affiliate agrees to comply with all laws and regulations and will not engage in spamming, unlawful mass emailing or any unapproved emailing or in any way fail to comply with the CAN SPAM Act of 2003, 15 U.S.C. 7701, et seq., as amended, or any comparable laws, rules or regulations in any country from or to which Affiliate is accessing the Site or the Program or participating in any Omiana Program, that govern email marketing and advertising. Affiliate agrees that its promotional activities will not infringe on Omiana's intellectual property rights, including but not limited to copyright and trademark rights.
Affiliate shall not perform trademark bidding or direct linking on search engines including on Google, Yahoo and MSN, when the applicable Program prohibits such activity. By "direct linking" this agreement refers to sending traffic directly from the search engine to the Company website without use of an intermediary landing page.
We reserve the right at any time to further restrict what activities are considered valid and will entitle Affiliate to Affiliate Commissions under this Agreement. We reserve the right to withhold, refuse or withdraw approval of any websites, email distribution lists, and/or marketing channels for any reason, whatsoever, in our sole discretion. Only Affiliate's websites, e-mail distribution lists or other marketing channels that have been reviewed and approved by Omiana may be utilized in connection with the Site and Program.
Affiliate shall not alter, modify or otherwise change the creative content, links and code used to create the advertisements, text link, banner ad or coupon (collectively, the "Creative"), or any Creative-related feature, that it obtains access to in connection with any Omiana Program in any manner whatsoever, without our prior express written consent.
Affiliate agrees to the responsibility of reviewing the availability of creative that it has placed within its media on a daily basis. It is the Affiliate's responsibility to change creative within its media when the creative is no longer available on the site. Omiana assumes no responsibility to notify Affiliate when a specific creative is no longer available on the site.
In addition, Site integration tags and tracking pixels ("Tags") included in the Creative or otherwise incorporated may not be altered under any circumstances. Omiana may employ a testing system to determine whether You have removed or altered the Tags. Altering, removing or disabling Tags may jeopardize Your ability to be paid for Commissions and is grounds for immediate termination of Your Program account, with or without notice. You will not, nor knowingly permit any person to, activate Creatives or inflate the amount of Transactions begetting Commissions through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, device, program, robot, Iframes, hidden frames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person performing an Transaction.
Order Processing. We will process product orders placed by customers who follow Referral Links from your Affiliate Site to our Site. We reserve the right to reject orders that do not comply with any and all requirements that we periodically may establish. We will be responsible for all aspects of order processing and fulfillment. Among other things, we will prepare order forms, process payments, cancellations, returns, and handle customer service. We will track sales made to customers who purchase products using Referral Links from your Affiliate Site to our Site and will make available to you on your account dashboard reports summarizing sales activity. The form, content, and frequency of the reports may vary at our discretion. You hereby agree not to disclose the information contained in these reports to any third party without prior written consent from Omiana.
Policies and Pricing. Customers who buy products through the Affiliate Program will be deemed to be Omiana customers. Accordingly, all Omiana rules, policies and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change such policies and operating procedures at any time at our discretion. By enrolling as an Affiliate in the Program, you agree to be bound and abide by such terms and conditions as stated here AND on the Omiana site.
Omiana Marks & Trademarks; Infringement. The trademarks, trade names, website banners, designs, images, logos, promotional and marketing material, etc., made available to you through our Site and the Referral Links are the exclusive intellectual property of Omiana (“Omiana Marks”). Subject to the terms and conditions of this Agreement, Omiana grants you a limited non-exclusive, nontransferable, revocable license to use the Omiana Marks during the term of this Agreement exclusively in connection with the Affiliate Program. You will not (a) modify the Omiana Marks, or (b) cause any act or thing that would impair our rights in the Omiana Marks or damage the reputation for quality inherent in the Omiana Marks.
Further, you acknowledge (a) your use of Omiana Marks does not convey to you any right, title or interest in or to the Omiana Marks; (b) Omiana ownership of the Omiana Marks, (c) you may not contest the Omiana Marks, register or attempt to register in any jurisdiction any Omiana mark or any confusingly similar mark or trade name; (d) you shall identify the Omiana Marks by including appropriate symbols and notices reasonably requested by us; (e) you may not obtain or use the Omiana Marks except as provided in this Agreement; and (f) your use of the Omiana Marks, including all goodwill associated with such use, shall inure solely to the benefit of Omiana.
“Omiana," "Omiana Makeup," and related cannot be used as a part of but not limited to an affiliate’s website domain name, blog, Facebook account, YouTube channel, Twitter username or any URL associated with the affiliate account.
Omiana reserves the rights to seek legal action against wholesalers and affiliates that infringe our copyrights and registered trademarks, or that replicate our product designs under a different brand.
Customer and Sales Information. We will own all right, title, and interest (including all intellectual property rights) in and to all information that is created or collected in connection with this Agreement, including, without limitation, (a) any contact information collected from any customer who enters the Omiana Site from a link from your Affiliate Site (“Affiliate Customers”) and (b) any information regarding click-through rates or product purchases by Affiliate Customers (“Sales Information”). Subject to the terms and conditions of this Agreement, Omiana grants you a limited worldwide, non-exclusive, royalty-free license to use the Sales Information to the extent necessary to fulfill your obligations under this Agreement or for your internal research purposes. You agree not to disclose any Sales Information or Affiliate Customer contact information to any third party without Omiana’s prior written approval. You agree not to send Affiliate Customers e-mail communications promoting your Site as an affiliate of Omiana or otherwise unless approved in advance by Omiana. You agree to maintain and adhere to your privacy policy, as posted and updated on your Affiliate Site.
Responsibility for Affiliates with Websites. You are solely responsible for the development, operation, and maintenance of your Affiliate Site and for all materials that appear on your Site, including, but not limited to the Referral Links. Furthermore, you bear sole responsibility for ensuring the accuracy and appropriateness of materials posted on your Site (including but not limited to all product-related materials) and ensuring that content posted on your Site does not violate or infringe upon the rights (including but not limited to copyrights, trademarks, privacy or other personal or proprietary rights) of any third party or violate any provision of this Agreement or any applicable national, state, regional or local laws or regulations.
We disclaim all liability for the matters stated in this Section. In addition, you agree to indemnify and hold us and Refersion harmless from all claims, damages and expenses (including, without limitation, attorneys' fees) relating to the content development, operation, maintenance and contents of your Affiliate Site or any breach of your obligations under this Agreement.
Term of the Agreement; FTC Guidelines. The term of this Agreement will begin upon our acceptance of your Program application and will end when terminated by either of us. Either you or we may terminate this Agreement at any time, for any reason, with or without cause, by giving the other party written, verifiable notice of termination. Upon termination of this Agreement, (a) all licenses hereunder shall terminate, (b) you will immediately remove any Referral Links, Omiana Marks, and other Omiana intellectual property or brand features from your Affiliate Site, and (c) Omiana shall immediately remove any of your logos, marks, and brand features from the Omiana site. In addition to the right to terminate this Agreement, Omiana shall be entitled, in addition to any and all remedies of law, to seek damages for breach of this agreement, including, injunctive relief, and/or refund of the fees and other payments made pursuant to the terms of this Agreement.
Fraudulent activity is not tolerated and will result in immediate account suspension and reversal of commissions: Affiliation can be immediately revoked for but not limited to the following reasons regarding inappropriate/unsuitable content as it relates to your involvement with Omiana's Affiliate Program:
Affiliate represents and warrants that all promotional means utilized by Affiliate (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 further represent and warrant that the content of Your word-of-mouth, social, and/or website and e-mail Affiliate efforts do not promote, advocate, facilitate or otherwise include any of the following:
(i) hate speech or material that discriminates on the basis of race, ethnicity, gender, age, disability, religion or sexual orientation; (ii) investment, money-making opportunities or advice not permitted under law; (iii) violence or profanity; (iv) pornographic, obscene, sexually explicit or related content; (v) material that defames, abuses, is libelous, is tortuous or threatens physical harm to others; (vi) material that displays any telephone numbers, street addresses, last names, URLs, e-mail addresses, any confidential information or any other personally identifiable information of any third person; (vii) material that impersonates any person or entity; (viii) any indication that any statements You make are endorsed by Omiana, without Omiana's express prior written consent; (ix) promotion of illegal substances or activities (e.g., illegal narcotics, how to build a bomb, counterfeiting money); (x); content which is inappropriate or harmful to children; (xi) promotion of terrorism or terrorist-related activities, sedition or similar activities; (xii) software pirating (e.g., warez, hotline); (xiii) hacking or phreaking; (xiv) any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (xv) any software, product or service that is illegal or that violates the rights of a third party including, but not limited to, spyware, adware, programs designed to send unsolicited advertisements (i.e. "spamware"), services that send unsolicited advertisements, programs designed to initiate "denial of service" attacks, mail bomb programs and programs designed to gain unauthorized access to networks on the Internet; (xvi) any software, product or service that harvests or collects the personal information of Internet users, whether or not for commercial purposes, without the express consent of such users; (xvii) any spoofing, redirecting or trafficking from other websites in an effort to gain traffic; (xviii) any content that infringes upon the intellectual property rights of any third party or any other right including, without limitation, false advertising, unfair competition, invasion of rights of publicity or privacy; (xix) gambling, contests, lotteries, raffles, or sweepstakes; (xx) any material that violates CAN-SPAM or any similar or comparable laws in any other country or jurisdiction in which You operate; or (xxi) any illegal activity whatsoever (including any violations of applicable U.S. state or federal law or regulation, Canadian provincial or federal law or the laws of any other country or jurisdiction in which You operate).
We may review Affiliate information, conduct and any suspected fraudulent, abusive or otherwise illegal content or activity. Any validated breach of this Section is grounds for immediate termination of this Agreement, forfeit of Affiliate Commissions, and deactivation of Affiliate's account. Affiliation will be cancelled if this contract is broken. Affiliation can be cancelled with no warning in cases of suspected fraudulent activity. If Omiana affiliation is revoked, you cannot rejoin the program in the future. Reversal of commissions can occur per our discretion. Affiliates must abide by all state and federal consumer protection laws and regulations including the Federal Trade Commission Act and the CAN-SPAM Act. The FTC points out that “when there exists a connection between the endorser and the seller of the advertised product” it is imperative that such a connection is “fully disclosed.” Please read full text here as well as FTC information on disclosures (FTC information in general is invaluable). We strongly encourage our affiliates to adhere to the FTC’s rules. We also reserve the right to terminate our relationship with any non-compliant affiliates.
Company monitors traffic, Transactions, Commissions, and other Program-related activities for potential fraud. If Company suspects that Your account has been used in a fraudulent manner, Your account may be deactivated effective immediately and with no notice to You pending further investigation. Company reserves sole judgment in determining fraud and You agree to be bound by any and all such determinations. It is the obligation of Affiliate to prove to Company that it has NOT engaged in fraud. If you are unable to provide Company with satisfactory evidence that You have not engaged in fraud within seven (7) days of Your Commissions, past and present, being placed in Pending or Delayed Status, then Company may terminate Your account and cancel payment on the applicable Commissions, at its sole discretion and without any further obligations to You. For the avoidance of doubt, if You add Commissions, or inflate Commissions, through the use of fraudulent means of traffic generation, as determined solely by Company, You will forfeit all of the Commissions related to the Program, potentially owing Company, and Your account may be terminated effective immediately.
Affiliate authorizes Company to utilize otherwise protected information subject to the provisions below related to confidentiality of Affiliate's identification and marketing data.
Paid Search Policies. Omiana encourages blogger affiliates to take advantage of paid search engine marketing campaigns. Bidding at larger pay per click search engines (PPCSE), such as Google, Yahoo, and MSN, is a great way to drive traffic to our product sites and send your commission checks even higher. Our affiliates may enjoy liberal keyword bidding in our program, including trademark and brand names, providing they comply with our paid search policy. Affiliates engaging in paid search marketing campaigns must adhere to the following terms:
Coupon Code Marketing. Promotion language must be simple, easy to understand, and should include the following: the offer, the coupon code, the expiration date, if/when applicable, and approved text link only. Affiliates must not use “bait and switch” language, misrepresentations, or false advertising when promoting offers (e.g., but not limited to, “Click here for more possible deals”). Affiliates must remove invalid coupon codes and banners or make clear to readers that the code is expired.
Affiliates may not use any of the Omiana domains and/or URLs (including but not limited to omiana.com, epicmineralbeauty.com, shopepicmineralbeauty.com, passthekombucha.com, makeupwithoutchemicals.com) as the display domain or URL in the advertisement. When engaging in paid search engine campaigns, affiliates must use their own domain and/or URL in their ads.
All ads placed with either Paid Search Networks or Paid Inclusion Search Engines must have the following text in their advertising text: aff or affiliate in the body text and (preferably and recommended)/or headline of the advertisement. This is to identify the ad as an affiliate reseller to potential clients. Where the Paid Search Network or Paid Inclusion Search Engine provide a field for you to identify your link as a sponsored listing (i.e. Google Adwords), you must complete that field and identify yourself as a reseller/affiliate. You then do not have to add the text listed above in the text of your advertisement’s body text or headline. Failure to follow this guideline will be grounds for suspension from the program and possibly forfeiture of all commissions.
You may not make any inflammatory or untrue statements in your campaigns. To avoid conflicts and to protect the integrity of the Omiana brand, we reserve the right to suspend any affiliates activities and thus their commissions for phrases that we determines make untrue or inflammatory claims of our products, services or websites. To avoid such measures, please email all ad text and proposed keywords/phrases you wish to bid on to the Affiliate Manager for approval or editing, PRIOR to your submitting it to Paid Search Network providers or Paid Inclusion Search Engines.
You are encouraged to promote Omiana in various acceptable ways such as through banners, text links, recommendations, social media, and/or offers through your newsletters to subscribers and clients. You agree NOT to promote Omiana through unsolicited emailing (spamming) or any other method of mass communication. Our policy does not tolerate the use of SPAM. In the event that you violate this policy we will immediately terminate this agreement and rights to any commission or rank in our affiliate program.
Modification. We reserve the right to change or modify the terms and conditions contained in this Agreement, at any time and to our sole discretion. Any changes or modifications will be effective upon posting of the revisions, and posting notice of such changes to the Site. Omiana may deliver notice by posting a change notice or a new agreement on our Site or by giving you notice of the change or modification via email. Modifications may include, for example, but are not limited to, changes in the scope of available referral fees, referral fee rates, referral fee schedules, payment procedures, and Program rules. If any modification is not acceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Affiliate Program following our posting of a modification (including a new Agreement) on our Site will constitute your acceptance of the modification.
Tracking Affiliate Fees: Company may, from time to time in its sole discretion, apply an estimated amount of Affiliate's Commissions if there is a verified error in Affiliate's tracking code.
Use of Site. You may not use the Site or the Service in connection with aggregating, soliciting or recruiting Advertisers/Affiliates, publishers, other sites or other persons to form or join a marketing, advertising, or similar network.
Confidentiality. Each Party will take commercially reasonable actions designed to protect the Confidential Information of the other Party from misappropriation and unauthorized use or disclosure, and at a minimum, will take precautions at least as great as those taken to protect its own confidential information of a similar nature. The receiving Party may disclose Confidential Information of the disclosing Party to the extent necessary to comply with applicable Law. Upon request of the other Party, or in any event upon any termination or expiration of this Agreement, each Party will return to the other or destroy all materials, in any medium, which contain, embody, reflect or reference all or any part of any Confidential Information of the other Party. This Agreement shall be the Confidential Information of Company.
"Confidential Information" means all confidential and/or proprietary information and documents furnished or disclosed by or on behalf of a Party or its affiliates, no matter when or how furnished or disclosed. Confidential Information includes, without limitation, (a) all nonpublic information relating to a Party's or its affiliates' technology, business plans, agreements, promotional and marketing activities, finances and other business affairs, and (b) all third-party information that a Party or its affiliates is obligated to keep confidential. Confidential Information may be contained in tangible materials, such as drawings, data, specifications, reports and computer programs, lists, or may be in the nature of unwritten knowledge. Confidential Information does not include any information that has become publicly available without breach of this Agreement; can be shown by documentation to have been known to the receiving Party at the time of its receipt from the disclosing Party or its affiliates; is received from a third party who did not acquire or disclose such information by a wrongful or tortious act; or can be shown by documentation to have been independently developed by the receiving Party without reference to any Confidential Information.
Notices. Except as provided elsewhere herein, Affiliate must send all notices relating to this Agreement in writing via overnight mail: (a) to Omiana, 816 E. Broadway, Columbia, MO 65201 USA. All notices from Company shall be sent to the address submitted by You when You sign up for the Service.
Relationship of Parties. Nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between us. 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 Affiliate Site or otherwise, that reasonably would contradict anything in this Section. It is expressly agreed that the Affiliate is acting as an independent contractor. Omiana shall carry no worker's compensation insurance or any health, accident, or disability insurance to cover Affiliate. Omiana shall not pay any contributions to Social Security, unemployment insurance, federal or state withholding taxes, nor provide any other contributions or benefits that might be expected in an employer-employee relationship. Affiliate shall be solely responsible and liable for reporting and paying all federal and state income or other taxes applicable to the Affiliate's compensation under this Agreement. It is further understood and expressly agreed by Affiliate that she has no right or authority to incur expenses, obligations, or liabilities in the name of or binding on Omiana, and he shall not represent to third parties that he has any relationship (e.g., employer- employee or principal-agent) with Omiana other than the affiliate arrangement. The Affiliate does not have an equity stake in Omiana.
Both parties agree to use trademarks, trade names, titles, logos, and related in the appropriate manner that will not portray either party in any negative light.
Representations. The following apply directly to Affiliates earning Commissions from Omiana via their blogs. Affiliates without blogs and websites abide by applicable Representations as follow, too: The Parties hereby acknowledge and agree that Affiliate is solely responsible for the method in which the Creatives are disseminated. You represent and warrant that You will not engage in any activities that violate any Program terms and conditions. Moreover, You represent and warrant that (a) Your social media and/or website and/or e-mails are represented by a legitimate second-level domain name (e.g. yoursite.com is acceptable; however, a shared server, e.g., sharedsite.com/yoursite, is not acceptable); (b) Your website is not offered as a part of a community-based website personal entry or personal page; (c) Your website and e-mails do not incentivize users to click on Creatives, including by awarding users cash, points, prizes, and/or contest or sweepstake entries or any other incentives ("Incentives"); (d) Your website is not hosted by a free service and is fully functional at all times and at all levels (no "under construction" websites or any sections thereof are permissible); (e) You will place or use the Creatives only with the intention of delivering valid Transactions as determined by, and for the benefit of, the Company; (f) You will not violate guidelines of any search engines being utilized; (g) You will not allow the Creatives to be placed on any non-Affiliate website without the prior express written consent of Omiana; (h) You will not use any Creatives or any other Program terms and/or content in connection with aggregating, soliciting, or recruiting other Publishers, Advertisers, Affiliates, other websites or other persons to form or join an affiliate marketing, advertising, or similar network for the purpose of engaging in business of the type conducted by Enterprise; (i) You will not redirect traffic to a website other than Omiana.com; (j) Your performance under this Agreement shall not in any way violate or infringe upon any third-party rights, including rights regarding ownership, trade secrets, trademarks, copyright or patents; (k) You shall protect, promote and preserve the goodwill associated with Company trade name and any Customer relationships in connection with its performance hereunder; (l) in performing Your obligations and exercising Your rights under this Agreement, You shall comply with all applicable laws (and all changes in laws) relating to or affecting this Agreement or the work to be performed hereunder, and (m) You shall obtain and maintain all permits, licenses, and consents required in connection therewith.
Indemnification. You agree to indemnify and hold Omiana and its respective parent, subsidiaries, affiliates, directors, officers, employees, agents, successors, assigns, and representatives harmless from any and all claims, suits, judgments, allegations, lawsuits, actions or other proceedings ("Claims") for any damages, fines, penalties, deficiencies, losses, liabilities, obligations, costs and expenses (including without limitation reasonable attorneys' fees, costs related to in-house counsel, court costs and and witness fees) (collectively "Losses") or any threatened Losses arising from or in connection with Affiliate's breach of this Agreement or intentional acts or omissions or for Claims or product liability brought against Omiana based on or arising from any Claim that our use of any material provided by you infringes on any copyright, patent, trademark, trade secret, or any other intellectual property right of any third party or resulting from your breach of this Agreement. You will pay any and all costs, damages, and expenses, including but not limited to reasonable attorney's fees and cost awarded against or otherwise incurred by Omiana in connection with or arising from any such claim, suit, action or proceeding.
Should any Claim give rise to Affiliate's duty of indemnification under this Agreement, Company shall notify Affiliate, and Company shall have the right to assume control of the defense of any such Claim provided that Affiliate shall reimburse company for all costs of the defense. If Company assumes the defense, Affiliate shall participate in (at Affiliate's own expense), but not control, the defense of such Claim. Participation in the defense shall not waive or reduce Affiliate's obligations to indemnify or hold Company harmless. If Affiliate is permitted to control the defense, Company may participate in the defense. In no event shall Affiliate settle any Claim without the express written consent of Company.
Limitation of Liability. YOU UNDERSTAND AND AGREE THAT OMIANA AND REFERSION SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OMIANA AND/OR REFERSION’S AGGREGATE LIABILITY ARISING WITH RESPECT TO THIS AGREEMENT AND THE AFFILIATE PROGRAM WILL NOT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. All claims made hereunder by you against us shall be made within six months of the act or omission which forms the basis of such claims.
COMPANY WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY), TO YOU OR ANY OTHER PERSON OR ENTITY FOR COST OF COVER, LOST PROFITS, LOSS OF BUSINESS, DATA OR REPUTATION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF THIS AGREEMENT.
THE SITE AND THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, ARE DISCLAIMED (INCLUDING, WITHOUT LIMITATION, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). THE SITE AND THE SERVICE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. ENTERPRISE HAS NO LIABILITY, WHATSOEVER, TO AFFILIATE OR ANY THIRD PARTY, FOR AFFILIATE'S USE OF, OR INABILITY TO USE, THE SITE OR THE SERVICE AND ENTERPRISE DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS AND IMPLIED, THAT AFFILIATE'S USE OF SAME WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY OF THE PROGRAMS WILL BE AVAILABLE TO AFFILIATE. COMPANY SHALL NOT BE RESPONSIBLE FOR THE FAILURE OR OTHER ACTS OR OMISSIONS OF ANY AFFILIATE.
Disclaimer of Warranties. WE MAKE NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE AFFILIATE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS, MERCHANTABILITY, NON-INFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF A COURSE OF PERFORMANCE, DEALING, OR TRADE USAGE). 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 or termination of any services, products or this Agreement.
Program data compiled by Company including, but not limited to, numbers and calculations regarding Transactions and Commissions and associated Fees ("Program Data"), will be calculated by Company through the use of tracking technology and shall be final and binding on You. Any questions regarding the Program Data must be submitted in writing within fourteen (14) days of initial appearance in the tracking system; otherwise the Program Data will be deemed to be accurate and accepted by You. Affiliate understands and agrees that on occasion the Service and/or the Site may be inaccessible, unavailable, or inoperable. Company will attempt to provide the Service on a continuous basis, but is under no obligation to provide the Service or maintain the availability of the Site on a continuous or uninterrupted basis. Company's failure to deliver the Service because of technical difficulties does not represent a failure to meet the obligations of this Agreement.
Assignment and Successors. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and be enforceable against, the parties and their respective successors and assigns. Neither Party shall assign or transfer this Agreement, in whole or in part, without the prior written consent of the other Party, and any such assignment without consent shall be void, provided that either Party may, upon prior written notice to the other party, assign or transfer this Agreement, in its entirety only, to an Affiliate capable of performing its obligations hereunder or to an entity acquiring all or substantially all of the operating assets of the assigning Party.
Publicity. You agree and understand that under this Agreement you shall not utilize media releases of any kind, other than those expressly authorized under this Agreement or otherwise authorized by Omiana in writing, in order to publicize your relationship with Omiana. Furthermore, absent express approval from Omiana under the terms of this Agreement or otherwise, you shall not use any Omiana Mark, trademark, service mark, logo or any other information which identifies Omiana in your sales, marketing and publicity activities and/or materials, including, but not limited to interviews with representatives of any written publication, television station or network, or radio station or network, and publication in any website, digital media, print, video or audio media.
Governing Law, Jurisdiction, and Venue. This Agreement will be construed, governed, and enforced by the laws of the United States and the State of Texas, without reference to rules governing choice of laws and conflicts of laws' provisions. The sole and exclusive jurisdiction for any action or proceeding arising out of or related to this Agreement shall be an appropriate State or Federal court located in the State of Texas and you hereby irrevocably consent to the jurisdiction of such courts. Any and all disputes or controversies whether of law or fact of any nature whatsoever arising from or with respect to this Agreement shall be decided by arbitration by the American Arbitration Association ("Arbitrator"), in accordance with the rules and regulations of that Arbitrator. Arbitration shall take place in Travis County, TX.
Force Majeure. Company shall not be liable to Affiliate by reason of failure or delay in the performance of its obligations hereunder on account of telecommunications, Internet, or network failure or interruption, results of computer hacking, acts of God, fires, storms, war, governmental action, labor conditions, earthquakes, natural disasters or any other cause which is beyond the reasonable control of Company.
Injunctive Relief. You expressly agree that your violation of this Agreement may cause irreparable harm to Omiana and that a remedy at law in such a case would be inadequate. Therefore, in addition to any and all remedies available at law, Omiana will be entitled to seek an injunction or other equitable remedies in all legal proceedings, without the need to post a bond of any kind, in the event of any threatened or actual violation of any or all of the provisions hereof which may threaten irreparable harm to Omiana.
Attorneys’ Fees. In the event any action is commenced to construe or enforce any provision of this Agreement, the prevailing party, in addition to all other amounts such party shall be entitled to receive from the other party, shall be entitled to receive its reasonable attorneys' fees and costs incurred in bringing such action, up to and through any appeal.
Waiver and Severability. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provision of this Agreement. The failure of either party to enforce any right or remedy shall not be deemed a waiver of said right or remedy. If any provision of this Agreement is determined to be invalid or unenforceable, it will be deemed to be modified to the minimum extent necessary to be valid and enforceable. If it cannot be so modified, it will be deleted and the deletion will not affect the validity or enforceability of any other provision unless, as a result, the rights of either party are materially diminished or the obligations and burdens of either party are materially increased so as to be unjust or inequitable.
Any provisions of the Agreement which are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction. A Party's waiver of any term or condition of this Agreement shall not be deemed a continuing waiver. The rights set forth in this Agreement are cumulative and in addition to those otherwise provided by law and may be exercised concurrently or separately, and the exercise of any one remedy shall not be deemed an election of such remedy to the exclusion of other remedies.
Scope of Agreement. This Agreement and the Referral Fee Schedule constitutes the entire agreement and understanding between us with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous, negotiations, representations, agreements or understandings with respect thereto, whether written or oral. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.
Term. The Agreement shall commence upon Company's acceptance of Your Program application and remain in effect until terminated as set forth herein.
Termination. Either party may terminate this agreement at any time. In addition, Company reserves the right, in its sole and absolute discretion, to terminate an Affiliate Program, suspend Your participation in a Program, and/or remove any Creatives/incentives/etc. at any time for any reason. Company also reserves the right to terminate Your access to the Site at any time. Termination notice may be provided via e-mail and will be effective immediately. Upon termination, Affiliate agrees to immediately remove from its website(s) any and all Creatives, Company code, or other intellectual property made available to Affiliate in connection with its performance under the Agreement. The representations, warranties, and those obligations that by their terms and context show the Parties intended them to survive the termination of this Agreement for any reason, including provisions governing confidentiality, ownership, indemnification and liability, shall survive the expiration or earlier termination of this Agreement.
Conflict of Interest Policy. Affiliate acknowledges that they will not promote, manufacture, distribute, or sell any products which replicate the designs, ingredient deck, and related of products that are exclusive to Omiana. Omiana will legally pursue all parties associated with the manufacturing, distribution, circumvention, and sale of counterfeit as well as infringed-upon Omiana products.
Survival. Notwithstanding any legal presumption to the contrary, any provisions that by their terms are intended to survive termination, shall survive termination or expiration of this Agreement.
This Agreement's last updated is depicted at the top of the Agreement.
Contact Information: Omiana, Affiliate Relations, 1986 S Coast Hwy #187, Laguna Beach, CA 9265, USA. (888-266-4262 or email us.
By filling out the application form you acknowledge that you have read and agree with the Omiana Affiliate Program terms and conditions. Consenting to these terms means that you have read and also agree to Omiana's site Terms and Privacy Policy. Thank you for contacting us with questions/ways in which we can clarify.