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Gifting Terms & Conditions
Effective Date of Current Policy: March 1st, 2021
Please read these terms and conditions very carefully before applying to receive free products from Blemish.
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 agreement between yourself (on behalf of yourself or the business that you represent) and Blemish inc. (“Blemish”). These terms will govern your relationship with Blemish and your participation in the Blemish gifting program (or 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 Blemish. As used in these terms, “influencer”, “creator”, “you” or “your” shall mean the individual who wishes to receive free products from Blemish, and his/her employees, agents, business affiliates, and permitted successors and assigns. Influencer and Blemish may be referred to hereinafter individually as a “party” or collectively as the “parties”.
By accepting these Terms and participating in the Program, Influencer agrees as follows:
If selected by Blemish, you will be given free products (“Products”) and in exchange you will have the opportunity to promote the products on your social accounts. You are not required to post about your experience with the Products. As a gifted influencer, you are subject to these gifting terms and conditions, and any separate agreement Blemish may require you to execute as well as any Blemish policies, standard operating procedures or guidelines provided to you from time to time (collectively, the “Terms”).
To become a Blemish influencer, 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 account on at least one form of social media, including Facebook, Instagram, Twitter, Pinterest, Snapchat, Pinterest and YouTube, which have been approved by Blemish (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.
Blemish reserves the unconditional right to accept or deny any influencer who applies to be part of the gifting program.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF INFLUENCER
Influencer represents and warrants that:
Influencer has the power and authority to enter into these Terms;
Influencer is not a party to any agreement or subject to any law that restricts Influencer’s performance of Influencer’s obligations hereunder;
Influencer possesses all legal authorizations, permits and licenses necessary for the conduct of Influencer’s obligations hereunder;
Influencer has the right to assign the Content (as defined herein) to Blemish, 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
Influencer 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 free products and/or experiences, and other good and valuable consideration, Influencer shall have the choice to market and promote the Blemish brand and any Blemish Products and/or services on your Accounts (the “Services”), subject to the terms and conditions contained herein.
Influencer may choose to perform the following Services:
· Create and post photo and video content promoting Blemish’s brand, Blemish’s Products and/or services and/or any related campaign as Blemish may request from time to time (“Content”). For avoidance of any doubt, Content shall include any and all content, photos, videos, pictures, writings, or any other work product that Influencer creates as part of the Services or otherwise related to the work Influencer does for Blemish.
· If requested by Blemish, attend events.
Influencer agrees that Blemish 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:
· Any and all activity undertaken in connection with your participation in the Program;
· Ensuring at all times, compliance with all applicable laws, regulations, rules, administrative guidelines, policies, codes, orders and ordinances, including without limitation, all privacy and data security laws and the terms and conditions of all applicable third party websites, platforms or applications, including by making disclosures in accordance with the FTC’s Guides as further provided herein, in rendering the Services and each applicable campaign;
· Conducting yourself at all times with the highest degree of professionalism, providing the Services with commercially reasonable skill and care in a competent and professional manner, behaving in a legal, ethical and business-like manner and maintaining the highest standards of integrity, honesty and responsibility in your dealings with Blemish, its staff, customers, followers and representatives;
· Presenting and demonstrating Blemish Products in a positive, truthful and sincere manner and not engaging in any activity or action that may damage or be harmful to the reputation, goodwill or interest of Blemish, any of Blemish’s Products and/or services or, any of its associates, employees, directors, officers, agents, partners or affiliates and will not commit any act which brings Blemish into public disrepute, contempt, scandal, or ridicule, or which insults or offends any of Blemish’s competitors or the general community to which Blemish’s advertising materials are directed, or which might tend to harm Blemish or any of Blemish’s Products and/or services including, without limitation, disparaging Blemish or any of Blemish’s Products and/or services;
· Not using Blemish’s name, or any trademarks, copyrighted materials, or other Blemish Intellectual Property of Blemish in any advertising, social media, or in literature other than material published by Blemish, without first obtaining the express written permission of Blemish; and
RESTRICTIONS / PROHIBITIONS
Influencer agrees and understands that if any Content posted by or associated with Influencer is deemed offensive, inappropriate or used incorrectly, that Influencer will be deemed, at the sole discretion of Blemish, ineligible to participate in the Program. Influencer will then be disqualified from receiving any commission, recognition, communication or compensation from Blemish. Influencer 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 Blemish, other than the ones contained in Blemish’s marketing and promotional information (under no circumstances should Influencer make any unsubstantiated claims, including but not limited to claims that the Blemish Products are intended to diagnose, treat, cure or prevent any disease);
· Fails to comply with any of the Terms;
· Promotes Blemish Products through unsolicited or spam emails or otherwise violates any laws, regulations, rules, administrative guidelines, policies, codes, orders and ordinances, regulating electronic communications;
· Engages in, promotes, links or contributes to, or creates a platform for, the publishing, hosting, or promotion of sexually explicit materials, scantily clad images or video, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or of any content that is unlawful, illegal, harmful, threatening, defamatory, obscene, harassing or otherwise objectionable to Blemish in Blemish’s sole discretion;
· Transmits messages or images inconsistent with the positive images and/ or good will with which Blemish wishes to associate;
· Engages in, promotes, or contributes to any illegal activity or violates Blemish’s or any third party’s legal rights, and/ or intellectual property rights;
· Engages in “spam” advertising, sends unsolicited commercial email, posts commercial messages to any forum that prohibits such messages, or engages in any other advertising or marketing practices that are deceptive, misleading, false, fraudulent, or otherwise objectionable in Blemish’s sole discretion;
· Generates or sends any email messages using or containing Blemish’s brand name, logos, or any variation thereof, trademarks, likeness, images, and videos, without Blemish’s express express prior written permission;
· Uses Blemish’s banners, brand name, logos, trademarks, likeness, images, and videos, on its own website(s), thus creating market and customer confusion;
· Creates or links to a website that copies, resembles, has the look and feel of or creates the impression that it is the Blemish website or any other platform of Blemish;
· Reads, intercepts, records, redirects, interprets or fills in the contents of any electronic form or other materials submitted to Blemish by any person or entity;
· Uses any promotional coupon or code that is not provided to Influencer by Blemish for the Program, or runs any ad with any of Blemish’s URLs offering brand influencer commissions;
· Sells or re-sells any of the Blemish Products, or offers a cash incentive or discount on Blemish Products as a means of promotion;
· Uses own credit card to purchase Products for a customer or another brand influencer, or places a product order using someone else’s credit card without the credit card owner’s written permission;
· Engages in any fraudulent activity or other activity that would falsely or artificially increase or affect the number of Influencer’s followers, “likes” or other indicators of Influencer’s audience or reach on any applicable Approved Media;
· Modifies price information regarding Blemish’s Products or offers on Influencer’s own website;
· Creates, links to or hosts any type of shopping cart between Blemish’s website and Influencer’s own website; or
· Takes any action (or fail to take an action), that is deemed to be unsuitable to Blemish, in its sole discretion.
Blemish has the right to monitor Influencer’s Accounts at all times to ensure compliance with the Terms. Blemish may notify you of any changes to your Content or Accounts that Blemish feels should be made. Without limitation to Blemish’s rights as stated herein, Blemish may terminate your participation in the Program if you do not make any changes to Your Account that Blemish feels are necessary or appropriate. Blemish reserves the right to terminate your participation in the Program immediately and without notice to you should Blemish suspect that you have committed fraud or otherwise violated the Terms. If such fraud or abuse is detected, Blemish shall not be liable to you for any commissions for such fraudulent sales.
DISCLOSURE OF MATERIAL CONNECTION
As otherwise provided herein, Influencer must include a disclaimer with all Content Influencer shares publicly stating your “material connection” to Blemish 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 Blemish” (such as #sponsored) or an “advertisement” (such as #ad) or that Influencer is an influencer of Blemish (such as #Blemish_Influencer)). Such disclosure must be made in close proximity to any statements that Influencer makes about Blemish or Blemish’s Products and must comply with any instructions or directions provided by Blemish 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 Influencer 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 Blemish may provide required disclosures and recommended promotional verbiage, Blemish shall not be responsible for any failure by Influencer to comply with any applicable laws, regulations, administrative guidelines, codes, orders and ordinances or any failure by Influencer to obtain all third party clearances and permissions with respect to Content Influencer posts.
IF INFLUENCER 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 INFLUENCER.
INTELLECTUAL PROPERTY RIGHTS
Influencer’s Content and Attributes. For the Services which Influencer is providing under these Terms, and without limiting Blemish’s ownership of the Blemish Intellectual Property (as defined below) as provided herein, Influencer hereby grants Blemish 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 Blemish’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 Influencer provides may be paraphrased, amplified, shortened and/or put into conversational form.
Influencer acknowledges that participation in the Services means Blemish has the irrevocable right to use Influencer’s Content and include influencer’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 Influencer attributes in any manner that Blemish determines supports the purposes of these Terms, including use in any media that accepts advertising or promotional content or communications.
Influencer’s Rights to Blemish Intellectual Property and Blemish Platforms. Blemish hereby grants Influencer, a non-exclusive, non-transferable, revocable, limited license to use and display Blemish’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, “Blemish 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 Blemish. Influencer acknowledges Blemish’s exclusive right, title and interest in and to the Blemish Intellectual Property and the goodwill pertaining thereto, that any use of the Blemish Intellectual Property by Influencer does not create any ownership, license or other right or interest in or to the Blemish Intellectual Property by Influencer except as specifically set forth herein and that all use of the Blemish Intellectual Property by Influencer shall inure to the benefit of Blemish. Influencer agrees that it shall not, challenge, or assist in any challenge to, the validity or exclusivity of Blemish’s ownership of the applicable Blemish Intellectual Property.
Further, Blemish 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 (“Blemish Platforms”). Influencer agrees not to:
· copy, rent, lease, sell, distribute, or create derivative works based on the Blemish Platforms in whole or in part, by any means, except as expressly authorized in writing byBlemish;
· use any Blemish Intellectual Property without prior written permission;
· use or launch any automated system, including, “robots,” “spiders,” or “offline readers,” to send messages to the Blemish Platforms or systems;
· use the Blemish Platforms in any manner that damages, disables, overburdens, or impairs any of Blemish’s websites or interferes with any other party’s use of theBlemish Platforms;
· attempt to gain unauthorized access (or exceed any authorized access) to the Blemish Platforms;
· access the Blemish Platforms other than through the Blemish interface; or
· use the Blemish Platforms for any purpose or in any manner that is unlawful or prohibited by these Terms.
EXCEPT AS OTHERWISE SET FORTH HEREIN, TO THE EXTENT PERMITTED BY LAW, THE BLEMISH PLATFORMS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. EXCEPT AS OTHERWISE SET FORTH HEREIN, BLEMISH DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE BLEMISH PLATFORMS INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
Third Party Licenses. Influencer shall be solely responsible for obtaining, in a form acceptable to and approved in writing by Blemish, 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 Influencer, as necessary for Blemish 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 Blemish all license and publicity rights necessary for Blemish 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. Influencer will provide Blemish with copies of such consents upon its written request.
TERM AND TERMINATION
The term of these Terms shall begin upon Blemish’s acceptance of you as a brand influencer and will end when terminated by either Party in writing (the “Term”). The Terms may be terminated by Blemish immediately at any time, with or without cause, upon Blemish’s written notice to Influencer; and by Influencer upon thirty (30) days written notice by Influencer toBlemish. In the event of cancellation or termination by Influencer for any reason or by Blemish for a breach by Influencer, in addition to the termination rights hereunder, Blemish shall be entitled to recover all costs (including attorney’s fees) in the enforcement of Blemish’s rights hereunder and, if Influencer shall have been paid in advance, Blemish shall be entitled to a refund of any fees advanced to Influencer; or, as applicable, Influencer shall waive all rights it has hereunder, including but not limited to any rights to commissions otherwise earned prior to the applicable payment date. Blemish may terminate these Terms and all other agreements between Blemish and other brand influencers if Blemish elects to cease business operations, dissolve Blemish or terminate its business. Upon the termination of these Terms, all limited licenses granted to Influencer hereunder shall cease and you shall cease to hold yourself out as brand influencer of Blemish.
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.
Blemish may disclose to you confidential or proprietary information and trade secrets from time to time (collectively, “Confidential Information”). Blemish’s Confidential Information includes, without limitation, all non-public or proprietary information and Blemish Intellectual Property, including, but not limited to specifications, ingredients and other proprietary information relating to the Blemish 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 Blemish is (and will remain) the sole and exclusive owner of all right, title and interest in and to the Confidential Information, and all Blemish Intellectual Property. You further agree that you will not, and will cause any employees and other agents to not, use Blemish’s Confidential Information for the benefit of anyone other than Blemish. You agree not to use Blemish’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 Blemish’s Intellectual Property would cause substantial and irreparable harm and injury to Blemish’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, Blemish shall be entitled to receive injunctive and other equitable relief, without limiting the applicability of any other remedies.
In providing the Services to Blemish, you acknowledge and agree that your relationship with Blemish 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 Blemish. You are solely responsible for all of your 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 Blemish will not withhold or make payments or contributions on your behalf. You agree to indemnify and defendBlemish 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. Influencer agrees to at all times defend, indemnify and hold harmless Blemish (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 Blemish as set forth in this Section shall include reimbursement of any and all legal fees and related costs and expenses incurred by Blemish in connection with any such claim.
Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL BLEMISH OR ITS REPRESENTATIVES OR AFFILIATES BE LIABLE TO INFLUENCER OR ANY THIRD PARTY CLAIMING THROUGH INFLUENCER 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 INFLUENCER 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 BLEMISH’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 INFLUENCER PURSUANT TO THE TERMS IN THE 1-YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Disclaimer. BLEMISH MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING BLEMISH’S WEBSITE(S) OR ANY OTHER WEBSITES MAINTAINED AND OPERATED BY BLEMISH OR THE PRODUCTS OR SERVICES PROVIDED THEREON OR OTHERWISE OFFERED BY BLEMISH, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED AND EXCLUDED. IN ADDITION, BLEMISH MAKES NO REPRESENTATION THAT THE OPERATION OF ANY BLEMISH WEBSITE WILL BE UNINTERRUPTED OR ERROR FREE, AND BLEMISH 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. Blemish 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 Blemish. 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. Influencer may not subcontract or otherwise assign, transfer or delegate any of its rights, duties or obligations under these Terms. Blemish may assign, transfer or delegate its rights, duties and obligations hereunder to any third party acquirer of the business of Blemish, and following such an assignment, transfer and delegation, Blemish 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.