Terms of Use and Privacy Statement
Esum Cosmetics Affiliate Program
Terms and Conditions
Please read and review this entire agreement. This is a legally binding
agreement between the affiliate signing this agreement (“you” or “affiliate”)
and MUSE BEAUTY LLC, San Francisco CA owning entity of the ESUM Cosmetics brand
(“Esum Cosmetics,” “we” “our” or “us”). By filling out and submitting the Esum
Cosmetics Affiliate Program application form, you acknowledge that you have
read and agree with the following terms and conditions and that you agree to be
legally responsible for each term and condition.
1. Submitting Your Application
Once you submit your application you are bound by the terms of this agreement.
When filling out the application you must provide accurate and complete
information. You participate in the Esum Cosmetics Affiliate Program by legally
advertising our website: href
(the “Website”), according to the terms and conditions of this agreement to
receive a commission on referral customers. 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 or social media presence is
unsuitable for any reason.
2. Affiliate Obligations
2.1. Once your application is approved, we may re-evaluate your application at
any time. 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. Affiliation can be immediately revoked if we decide in our
sole discretion that your site or content is unsuitable for any reason,
including but not limited to:
2.1.1. False advertisements concerning Esum Cosmetics or any of Esum Cosmetics
products or services (collectively “Esum Cosmetics Products”)
2.1.2. Spamming using your affiliate link
2.1.3. Usage of materials that infringe on any copyright, trademark or other
intellectual property rights or that violate the law
2.1.4. Harassment or intimidation of others on your website
2.1.5. Content deemed to be graphic or explicit by Esum Cosmetics
2.1.6. Promotion of illegal activities
2.1.7. Usage of technology to potentially divert commission from other
affiliates in our program
2.1.8. You fail to comply with any of the terms of this agreement
2.1.9 You make a representation about Esum Cosmetics Products without
prior written approval by Esum Cosmetics.
2.1.10 You fail to comply with any state or federal law or regulation,
including without limitation FTC regulations.
2.2. Esum Cosmetics reserves the right to review your placement and approve the
usage of your affiliate links. You may use graphics and texts provided to you
by us via your Affiliatly dashboard or create your own as long as it is
appropriate (see condition 2.1). You may not use your own link to make
purchases. You will not earn commission from orders placed under your affiliate
link by customers residing in your household. You may not knowingly allow
others to repeatedly use your affiliate link to earn commission.
2.3. The maintenance and updating of your site is your responsibility. We may
monitor your site as necessary to ensure your content is up to date and notify
you of any changes that should be made to help your affiliate performance. Your
affiliation can be terminated if we find your site has not been updated in over
1 year. A written notice will be given via email should we find your site
outdated. You will have 48 hours to respond with an updated site before your
affiliation is terminated.
2.4. This agreement is personal to you and is not transferable. You agree that
you are an independent contractor, and nothing in this agreement will create
any partnership, joint venture, agency, franchise, sales representative, or
employment relationship between you and Esum Cosmetics. You will have no
authority to make or accept any offers or representations on our behalf. You
will not make any statement, whether on your site or any of your sites or any
of your social media accounts that reasonably would contradict anything in this
agreement. You are responsible for the payment of all taxes and fees on
all payments made to you by MUSE BEAUTY LLC, on behalf of Esum Cosmetics.
3. Promotion Restrictions
While you are free to advertise the Website on your own web site or social
media accounts, the promotion of the Esum Cosmetics brand could be perceived to
the public as a joint effort. Please be aware certain forms of advertising are
prohibited by Esum Cosmetics. You agree to abide by the following guidelines
when planning your marketing efforts:
3.1. Using “Esum”
The word “Esum” cannot be used as a part of an affiliate’s website domain name,
blog name, Facebook account, YouTube channel, Twitter username or any URL
associated with the affiliate account.
3.2. FTC Guidelines & Spamming
Advertising commonly referred to as “spamming” is unacceptable to MUSE BEAUTY
LLC and Esum Cosmetics and could damage our names. 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.” The FTC requires that this disclosure must be a “clear and
conspicuous” notice. You must use one of the following terms
conspicuously in your notice – “Ad” or “Sponsored”. 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. Any pending
commissions owed will not be paid if your account is terminated due to spamming
or solicitation.
3.3. Unsolicited Commercial Email (UCE)
You may use mailings to contact your customers so long as the recipient is
already a customer or subscriber of your services or website and the recipient
has the option to opt-out of future mailings for themselves.
3.4. Copyright and Trademark Infringement
Affilate agrees that he/she will not infringe on the rights of any copyrights,
trademarks, designs and/or domain names, including without limitation
copyrights, trademarks, designs and domain names of Esum Cosmetics, both
registered and common-law rights, including, without limitation, ESUMCOSMETICS.COM,
ESUM COSMETICS, ESUM, MUSE BEAUTY.PRO, MUSE BEAUTY, KETT, KETT COSMETICS,
KETTCOSMETICS.COM, musebeauty, musebeauty.com, esum.com and similar domain
names (collectively “Muse BeautyTrademarks”). Affliate also agrees to not
use website or product designs that are the same or similar to our Website
design and/or content or our product designs under a brand different than our
Muse Beauty Trademarks. Affiliate further agrees that he/she will not
promote, manufacture, distribute or sell any product that has a design that is
the same or similar to the design of a product that is exclusive to Esum
Cosmetics. Esum Cosmetics will legally pursue all parties associated with the
manufacturing, distribution, and sale of counterfeit Esum Cosmetics Products.
3.5. Paid Search Policies
Bidding at larger pay per click search engines (PPCSE), such as Google, Yahoo,
and Bing!, is a great way to drive traffic to your website and increase your
commission checks. Affiliates engaging in paid search marketing campaigns must
adhere to the following terms and requirements:
3.5.1. MUSE BEAUTY LLC and Esum Cosmetics protects its Esum Cosmetics Trademarks
and does not allow any trademark bidding on any search engine or Paid Placement
service or site. This includes, but is not limited to activity on Google,
Yahoo, Bing!, Ask and other similar services. Affiliates may not bid on
trademarked or registered terms and products (i.e. esumcosmetics.com, Esum, Esum
Cosmetics, etc.) or any phrase type, misspelling, variation or combination
thereof. (See the restricted key word list below). An affiliate who infringes a
Muse Beauty Trademark or is otherwise in violation of this agreement may be
cancelled from the Esum Cosmetics Affiliate Program without prior notice.
3.5.2. Affiliates may not use the Muse Beauty Trademarks alongside with or in
conjunction with the following terms: “percent (%) off”, “sale”, “discount”, or
“coupon”
3.5.3. Affiliates may not use their affiliate link or any of the Esum domain
names and/or URLs (including, but not limited to href,
href)
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.
Forbidden Display URL Examples: href,
href
Approved Display URL Examples: href
3.5.4. You may not make any misleading or false statements in your campaigns.
To avoid conflicts and to protect the integrity of the MUSE BEAUTY LLC
Trademarks, Esum Cosmetics reserves the right to suspend any affiliate
activities and their commissions for statements or phrases that Esum Cosmetics determines
to be untrue or inflammatory claims of our Esum Cosmetics Products or websites.
To avoid such measures, you must forward all advertising text, statements
about any of Esum Cosmetics Products and proposed keywords/phrases you wish to
use or bid on to the Affiliate Manager of Esum Cosmetics to obtain written
approval or editing, PRIOR to your use thereof in any manner, including without
limitation submitting it to Paid Search Network providers or Paid Inclusion
Search Engines.
3.5.5. None of the restricted words may be displayed in the Headline or Body of
your advertisement. You agree that, following notice from Esum Cosmetics, you
will promptly remove any search listing containing copy and/or creative components
that Esum Cosmetics, in its sole discretion, deems inappropriate for any
reason.
Restricted Keyword List (but not limited to):
Esum
Esum Cosmetics
Esum.com
Esumcosmetics.com
Esum-Cosmetics.com
Esumcosmetics
Esum cosmetics
Esummakeup
Esum makeup
Esum makeup brushes
Esum beauty brushes
Esum cosmetic brushes
Esum Mascara
Esum Eye Pencil
Esum Lip Pencil
Esum Accessories
Esum Sanitation
Esum brush
Esum brushes
Esum discount
Esum coupon
Esum brushes coupon
Esum brushes discount
Failure to follow these requirements will be grounds for suspension from the Esum
Cosmetics Affiliate Program and forfeiture of all commissions.
3.6. Coupon Code Marketing Guidelines
Coupon marketing is allowed, but affiliates must adhere to the following terms:
3.6.1. Affiliates are permitted to use active coupon codes provided exclusively
through the Esum Cosmetics Affiliate Program. Affiliates are not permitted to
promote unauthorized coupon codes, codes that are exclusive to other
affiliates, codes provided in customer-oriented newsletters or other
promotional codes from Esum’s non-affiliate program marketing efforts. Use or
attempted use of any coupon code received from any source other than directly
from the Esum Affiliate Program intended for you will result in lost
commissions and/or removal from the program.
3.6.2. Promotion language must be simple, easy to understand, and should
include the following: The offer, the coupon code, the expiration date, and
approved text link only. Publishers of the coupon code must not use “bait and
switch” language, misrepresentations, or false advertising when promoting
offers (i.e: “Click here for more possible deals”). Publishers must remove
invalid coupon codes and banners, or make clear to readers that the code is
expired.
3.6.3. Affiliates bear the responsibility for removing any unauthorized,
user-submitted codes.
3.6.4. Distribution of coupon codes on multiple sites must be disclosed and
approved by Esum Cosmetics. Please email any new websites and promotions
distributing Esum Cosmetics coupon codes to affiliates@esumcosmetics.com for
approval.
3.6.5. Failure to follow these guidelines will result in suspension and lost
commissions. Upon warning, affiliates must remove all violations. Repeated
abuse will result in cancellation of your affiliation and any pending
commissions owed will not be paid if your account is terminated due to coupon
code misuse.
3.7. “Cookie-Stuffing” Policy
“Cookie-Stuffing”, forced clicks, and similar behavior. is not permitted.
“Cookie stuffing,” namely an unlawful strategy to re-route general affiliate
sales and/or traffic that did not originate from the official affiliate link
provided by Esum Cosmetics is an unlawful strategy of generating affiliate
sales. (IE: Use of cookie stuffing to cause tracking systems to conclude that a
user has clicked through a qualifying affiliate link – and to pay commissions
accordingly - even if the user has not actually clicked through any such link).
Affiliates found using, employing or receiving this strategy will be
immediately revoked and all commissions will be forfeited and conditions.
3.8. Adware & Toolbars
Affiliates are prohibited from transmitting any “interstitials,”
“Parasiteware™,” “Parasitic Marketing,” “Shopping Assistance Application,”
“Toolbar Installations and/or Add-Ons,” “Shopping Wallets” or “deceptive pop-ups
and/or pop-unders” to customers from the time the customer clicks on a
qualifying link to the Esum Cosmetics website until the time the customer has
exited the Esum Cosmetics site (ie. no page from the Esum Cosmetics site or any
Esum Cosmetics content or branding is visible on the end-user’s screen). The
terms a. “Parasiteware™” and “Parasitic Marketing” shall mean an application
that (a) through accidental or direct intent causes the overwriting of
affiliate and non-affiliate tracking cookies through any other means than a
customer initiated click on a qualifying link on a web page or email; (b)
intercepts searches to redirect traffic through an installed software, thereby
causing, pop ups, commission tracking cookies to be put in place or other commission
tracking cookies to be overwritten where a user would under normal
circumstances have arrived at the same destination through the results given by
the search (search engines being, but not limited to, Google, MSN, Yahoo and
similar search or directory engines); (c) set commission tracking cookies
through loading of Esum Cosmetics site in . s, hidden links and automatic
pop ups that open Esum Cosmetics’ site; (d) targets text on web sites, other
than those web sites 100% owned by the application owner, for the purpose of
contextual marketing; (e) removes, replaces or blocks the visibility of
affiliate banners with any other banners, other than those that are on web
sites 100% owned by the owner of the application.
4. Grant of Licenses
4.1. We grant to you a non-exclusive, non-transferable, revocable right
(“License”) to (i) access our Website through HTML links solely in accordance
with the terms of this agreement and (ii) solely in connection with such links,
to use our logos, trade names, Muse Beauty Trademarks, and similar identifying
material (collectively, the "Licensed Materials") that we provide to
you or authorize in writing for such purpose, provided that this License is
only in effect to the extent that you are a member in good standing of the Esum
Cosmetics Affiliate Program. You agree that all uses of the Licensed Materials
will be on behalf of Esum Cosmetics and the good will associated therewith will
inure to the sole benefit of Esum Cosmetics.
4.2. Each party agrees not to use the other's proprietary materials in any
manner that is disparaging, misleading, obscene or that otherwise portrays the
party in a negative light. Each party reserves all of its respective rights in
the proprietary materials covered by this license. Except to the extent that
the License is in effect, , each party retains all right, title, and
interest to its respective rights and no right, title, or interest is
transferred to the other.
5. Disclaimer
ESUM COSMETICS MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH
RESPECT TO THE PROGRAM, ESUM COSMETICS’ PRODUCTS AND/OR SERVICES, WEBSITE OR
THE PRODUCTS OR SERVICES PROVIDED THEREIN. ANY IMPLIED WARRANTIES OF ESUM
COSMETICS REGARDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR
NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY ARE EXPRESSLY DISCLAIMED AND
EXCLUDED. IN ADDITION, ESUM COSMETICS MAKES NO REPRESENTATION THAT THE
OPERATION OF OUR WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND WE WILL NOT
BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
6. Representations and Warranties
You represent and warrant that:
6.1. This agreement has been duly and validly executed and delivered by you and
constitutes your legal, valid, and binding obligation, enforceable against you
in accordance with its terms;
6.2. You have the full right, power, and authority to enter into and be bound
by the terms and conditions of this agreement and to perform your obligations
under this agreement, without the approval or consent of any other party;
6.3. You have sufficient right, title, and interest in and to the rights
granted to us in this agreement.
7. Limitations of Liability
ESUM COSMETICS IS NOT LIABLE TO YOU WITH RESPECT TO ANY SUBJECT MATTER OF THIS
AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL
OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR
EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL
OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF WE HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. FURTHER, NOTWITHSTANDING ANYTHING TO THE CONTRARY
CONTAINED IN THIS AGREEMENT, IN NO EVENT SHALL ESUM COSMETICS’ CUMULATIVE
LIABILITY TO YOU ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN
CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHER LEGAL OR EQUITABLE
THEORY, EXCEED THE TOTAL COMMISSION FEES PAID TO YOU UNDER THIS AGREEMENT.
8. Indemnification
You hereby agree to indemnify and hold harmless Esum Cosmetics, and its
subsidiaries and affiliates, and their directors, officers, employees, agents,
partners, members, and other owners, against any and all claims, actions,
demands, liabilities, losses, damages, judgments, settlements, costs, and
expenses (including reasonable attorneys' fees) (any or all of the foregoing
hereinafter referred to as "Losses") insofar as such Losses (or
actions in respect thereof) arise out of or are based on (i) any claim that our
use of any affiliate trademarks infringes on any trademark, trade name, service
mark, copyright, license, intellectual property, or other proprietary right of
any third party, (ii) any misrepresentation of a representation or warranty or
breach of a covenant and agreement made by you herein, (iii) any claim related
to your website, including, without limitation, content therein not
attributable to us, (iv) any claim related to or based on any action by
you, or your agents, officers, employees, contractors or other affiliates of
yours,
(v) any representation regarding any Esum Cosmetics Product that has not been
approved in writing by Esum Cosmetics, or (vi) any failure to comply with state
or federal laws, regulations and/or guidelines, including without limitation
failure to comply with all notice of endorsement requirements of the FTC.
9. Confidentiality
All confidential information, including, but not limited to, any business,
technical, financial, and customer information, disclosed by one party to the
other during negotiation or the effective term of this agreement which is
marked "Confidential," will remain the sole property of the
disclosing party, and each party will keep in confidence and not use or
disclose such proprietary information of the other party without express
written permission of the disclosing party.
10. Payments
You will receive a commission for sending authorized sales via your affiliate
links and coupon codes. Sales must be placed by first time customers
only. In order to place an affiliate link, you must first be approved by Esum
Cosmetics to become an affiliate. Payout rates may be changed at any time and
can be viewed via your affiliate account on Affiliatly. It is your
responsibility to determine if the payout for a link you have placed has been
changed or discontinued. Esum Cosmetics uses a third party, Affiliatly, to handle
all affiliate tracking and payments. Payments are made automatically on or
before the fifteenth (15th) day of every month when your account balance
reaches the required minimum or more for the previous month’s transactions.
Your account does not accrue interest.
11. Affiliate Account Interface
You will create a log-in and password in order to enter the Affiliatly secure
affiliate account interface. From their site, you will be able to view and
receive your reports regarding your commissions due to you.
12. Modification
We may modify any of the terms and conditions in this agreement at any time at
our sole discretion. In such event, you will be notified by email, mail or
fax. Modifications may include, but are not limited to, changes in the
payment procedures and Esum Cosmetics’ Affiliate Program rules. If any
modification is unacceptable to you, your only option is to end this agreement.
Your continued participation in Esum Cosmetics’ Affiliate Program following the
posting of the change notice or new agreement on our site will indicate your
agreement to the changes.
13. Revocation of Affiliation
Affiliation with the Esum Cosmetics Affiliate Program can be ended at any time,
with or without cause, by giving the other party written notice. Written notice
can be in the form of mail, email or fax. In addition, this agreement shall
automatically terminate immediately without notice upon any breach of this
agreement by you. If Esum Cosmetics affiliation is revoked, you cannot rejoin
the program in the future.
14. General Terms
You agree that you have read and understood this Agreement and agree to abide
by all the terms and conditions herein. If in one or more instances
either party fails to insist that the other party perform any of the terms of
this Agreement, such failure shall not be construed as a waiver by such party
of any past, present, or future right granted under this Agreement, and the
obligations of both parties under this Agreement shall continue in full force
and effect. In the event that any portion or portions of this Agreement are
adjudicated by a court of competent jurisdiction to be unenforceable, any such
portion or portions shall be deemed severed from the remaining portions of this
Agreement. All remaining portions shall remain in full force and effect.
This Agreement contains the entire understanding of the parties concerning the
subject matter of the covenants herein set forth and may not be modified or
amended except in writing signed by both parties. This Agreement shall be
governed by and construed in accordance with the laws of the State of Utah
without regard to its conflict of laws rules.