Last updated: February 3, 2023

Thank you for your interest in joining the JessaKae Darlings Affiliate Program (the “Program”) operated by JessaKae, LLC (“we”, “our”, “us” or “JessaKae”). Before you may join the Program, you must read, agree with and accept all of the terms and conditions contained or incorporated by reference in these Terms of Service, including JessaKae's Privacy Policy available at https://jessakae.com/pages/privacy-policy. By joining the Program, you agree to be bound by the terms and conditions below (the “Agreement”).

We may change this Agreement at any time upon notice to you via the following URL: https://jessakae.com/pages/affiliates-terms.

1. ENROLLMENT IN THE PROGRAM

(a)    In order to join the Program, you must submit an application through the Program as designated by JessaKae via our affiliate platform, Shopify Collabs (“Shopify”), and agree to the terms of this Agreement.  All information provided by you in connection with any application and your participation in the Program must be complete and accurate.  If your information changes, it is your responsibility to immediately update such information with JessaKae or Shopify, as applicable.

 

(b)    Upon receiving your application, we will review your information and notify you of your acceptance or rejection into our Program. We reserve the right to reject any application or later revoke an accepted application in our sole discretion. 

 

(c)    As part of your application, and at any time upon request, you must identify for us at least one website, app, social media channel and/or other services that you will use in connection with the Program (“Your Services”).  All of Your Services are subject to our prior written approval.  

 

(d)     In order to participate in the Program, you are required to create an account with Shopify, subject to separate terms and conditions, which are hereby incorporated by reference.  Your account is for your sole, personal use, you may not authorize others to use your account, and you may not assign or otherwise transfer your account to any other person or entity.   You are responsible for the security of your password and will be solely liable for any use or unauthorized use under such password.  You must notify us immediately in the event that any unauthorized access to your account is suspected.  

 

2. AFFILIATE SALES COMMISSION

(a)    We agree to pay You the commission specified in an Offer (as defined below), if a visitor to the JessaKae site (a “Customer”) uses a Qualifying Link (as defined below) to purchase a product subject to an Offer, which is not otherwise returned, during the time specified in the Engagement (the “Qualifying Action”).  No telephone-based purchases, regardless of the original contact of the purchaser shall be included in commissionable sales.  

• “Offers” shall be links to discount codes and/or other offers for you to promote JessaKae to consumers through Your Services. 
• A “Qualifying Link” is a link and/or code from Your Services to JessaKae.com using one of the required URLs or code provided by JessaKae, if it is the last link to the JessaKae site that the Customer uses during a Session where a sale of a product to a Customer occurs.
•  A “Session” is the period of time beginning from a Customer’s initial contact with the JessaKae site via a link from Your Services and terminating when the Customer either returns to the JessaKae site via a link from a site other than Your Services, or the Offer expires or is terminated.

 

(b)    We shall pay you a sales commission for all Qualifying Actions at the rate agreed in writing between us and you (“Sales Commission”) in each Offer. All Sales Commissions shall be paid on the Net Sales Amount. No Sales Commissions will be paid on the purchase of gift cards. 

• “Net Sales Amount” means the product revenue received by JessaKae via a Qualifying Link, less amounts gift cards and/or store credits, discounts, coupons and transaction-based costs and expenses, including not limited to sales tax, shipping and handling fees, other services, and credit card fraud or other bad debt.  

(c)    You are responsible for all taxes and other similar levies applicable to the Sales Commission pursuant to any law or regulation. You shall report the Sales Commission to its taxation authorities as required by law.  While we may provide certain information regarding taxes, You acknowledge that we are not tax consultants and that You should consult with your own financial professionals and advisors.

 

(d)    We shall pay you for your Sales Commission on the timeframe agreed upon between us and you, subject to any and all applicable holding periods determined by Shopify. We reserve the right to withhold payment as deemed reasonably necessary to prevent suspected cases of fraud. You will receive the Sales Commission in US dollars.

(e) In the event your Sales Commissions exceed $600 or greater in any given calendar year, you are required to submit a W-9 to JessaKae for tax reporting purposes. In the event of any delay in providing such documentation, JessaKae reserves the right to withhold payment until receipt of a valid W-9. 

 

(f) All determinations of Qualifying Links and whether a Sales Commission is payable will be made by JessaKae in its reasonable judgment and will be final and binding on both You and JessaKae.  Prices for the products will be set solely by JessaKae at its sole discretion.

 

3. YOUR SERVICE RESTRICTIONS

You and Your Service(s) may not:

• Infringe on our or any anyone else’s intellectual property, right of publicity, privacy or other rights. This means you may not at any time (unless approved in writing by JessaKae) go to JessaKae.com or any JessaKae social media channels to pull images, collateral, video or music to be used in Your Services;
• Violate any law, rule or regulation;
• Contain or use any content that is threatening, harassing, defamatory, obscene, harmful to minors, or contains nudity, pornography or sexually explicit materials;
• Contain or use any content that is deceptive, fraudulent or misleading;
• Contain or use any discounts links or codes not validly obtained from us or Shopify;
• You may not misuse or otherwise abuse the Qualifying Links, including by enabling unauthorized sharing or posting the Qualifying Links on discount sites or discussion groups.  You must immediately report to JessaKae any unauthorized sharing of the Links as soon as you are aware of any such unauthorized or fraudulent activity.

You also agree that you will not, through Your Services or otherwise, commit any act which brings JessaKae into public disrepute, contempt, scandal, or ridicule, or which insults or offends the general community to which JessaKae's advertising materials or products are directed, or which might tend to harm JessaKae or any of JessaKae's products or services including, without limitation, disparaging, their products or services, or their competitors. For the avoidance of doubt, a violation of any of the foregoing requirements in this Section may result in immediate termination from the Program, in JessaKae's sole discretion. 

JessaKae reserves the right to require You to edit or remove, within 24 hours notice, any content You create regarding the Offer if JessaKae, in its sole discretion, deems it to be misleading or inaccurate. 

 

4. SOCIAL MEDIA

Promotion on Facebook, Instagram, Twitter, TikTok and other social media platforms is permitted following these general guidelines: 

• You must comply with all terms, conditions, guidelines and rules set forth by the applicable social media platform provider, and shall not take any actions that would put us in violation of such requirements.
• If you tag JessaKae on social media, you acknowledge and agree that JessaKae shall have the right to organically repost any such tagged content on JessaKae owned and operated social media channels and websites with attribution to you.
• From time-to-time, we may make certain free samples, free products, and/or other items available to you for you to conduct promotional activities (such as giveaways) as part of your Service(s).  We shall not act as the sponsor of any such promotion and you are solely responsible for conducting any such promotional activities in compliance with applicable laws, including any laws applicable to the conducting and administration of sweepstakes and contests.  Any statements you make about such products or samples must comply with the disclosure obligations under Section 6. 

5. EMAIL / TEXT MARKETING

If you intend to promote our Program via e-mail or text campaigns, you must adhere to the following:

• Abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187), the Canadian Anti-Spam Law (CASL) and all other applicable laws (collectively, the “Act”) with respect to our Program.
• E-mail must be sent on your behalf and must not imply that the e-mail is being sent on behalf of us.  You shall ensure that you are the “sender” of all such emails as defined under the Act.
• You may not send SMS or MMS messages to an end user’s device unless the user has specifically opted in to receiving such messages, in compliance with all applicable laws, rules, regulations and best industry practices, including but not limited to, the Telephone Consumer Protection Act (TCPA).

6. DISCLOSURE REQUIREMENTS

You shall include a disclosure statement within any and all pages, blog/posts, or social media posts where Qualifying Links to the Offers are posted. From time to time, JessaKae may require certain hashtags specific to the Program. This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement. 

• Disclosures must be made as close as possible to the claims. 
• Disclosures must be made at each instance of a Qualifying Link. A single statement on the site, or a separate page with your general disclosure statement is not sufficient.
• Disclosures should be placed above the fold; scrolling should not be necessary to find the disclosure. (e.g. disclosure should be visible before the jump).
• Disclosures must comply with all Federal Trade Commission (“FTC”) disclosure requirements, including but not limited to, the FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising. 

7. COMPLIANCE

You represent and warrant to JessaKae that:

1. You are at least 18 years of age;
2. You will comply with all applicable laws and social media guidelines, including, without limitations, any laws regarding unfair competition, anti discrimination and/or false advertising;
3. Any claims you make about JessaKae or its products or services shall reflect your honest and truthful opinion, including fair, accurate and truthful depictions of what is represented;
4. You have no outstanding agreement or obligation that is in conflict with any of the provisions of this Agreement, or that would preclude you from fully complying with the provisions hereof;
5. Any material which is displayed on your Services will not infringe any third party’s intellectual property rights. 

 

8. REVERSAL OF COMMISSIONS

We seek to maintain a very low reversal rate, and transparent communication with our affiliates. However, we reserve the right to reverse Qualifying Actions due to order cancellations, duplicate tracking, returns, disputed charges, and program violations. 

Additionally, if we ask you for clarification or more information on any orders or clicks that we suspect may be in violation of this Agreement, we expect that you will respond in a timely and honest manner.

 

9. RELATIONSHIP OF THE PARTIES

You acknowledge and agree that you shall act as and shall be an independent contractor and not an employee or agent of JessaKae. Nothing in this Agreement shall create a partnership, joint venture, agency, or franchise between the parties in the legal sense of these terms. You shall not sign any document in the name of or on behalf of us nor hold yourself out as being an agent of us or as having apparent authority to contract for or bind us.  You shall not act or omit to act in any situation that would put us in violation of any applicable law, rule or regulation.

 

10. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION 

The Program and other services are provided “as is” without any warranties, express or implied.  We make no guarantee that you will earn any amount of Sales Commissions.  In no event shall we be liable to you or any third party for special, incidental, consequential, indirect or punitive damages, including, without limitation, any damages resulting from loss of profits, loss of business or loss of goodwill arising out of or in connection with this Agreement, our service or the Program, whether or not we have been advised of the possibility of such damages. In any event, our maximum liability to you for any claims shall in no event exceed the amount of Sales Commissions paid to you during the prior six (6) months.

 

You agree to defend, indemnify and hold harmless JessaKae and its and their officers, directors, employees, business partners, merchants and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from: (i) any breach by you of any of this Agreement, (ii) your promotional activities or Your Services or (iii) your use of materials or features available in the Program (except to the extent a claim is based upon infringement of a third party right by materials created by us).

 

11. INTELLECTUAL PROPERTY; CONFIDENTIAL INFORMATION

JessaKae may provide certain content to You, including graphics, banner ads, images, guidelines and key messaging points (collectively, the “JessaKae Materials”). JessaKae or its licensors are the exclusive owners of all copy, graphics, designs and all copyrights, trademarks and other intellectual property or proprietary rights in the JessaKae Materials, or contained on or used in connection with the JessaKae Service and Program.  Except as set forth herein, you agree not to copy, distribute, modify or make derivative works of any materials without the prior written consent of the owner of such materials.  You do not acquire any right, title or interest in the JessaKae Materials or the goodwill associated therewith. All rights not granted under this Agreement are reserved by JessaKae.

 

You acknowledge that the JessaKae Service contains confidential information, and therefore you shall not disclose such materials to any third party without our prior written approval. You agree to protect all JessaKae Confidential Information from unauthorized disclosure.   “Confidential Information” means all non-public information provided by or obtained through JessaKae, including but not limited to, the JessaKae Service portal and user-interface, access credentials, pricing, commission rates and list of Offers.  

 

13. TERM OF THE AGREEMENT

(a)   Either party may terminate this Agreement and/or your participation in the Program at any time upon written notice.

 

(b)  If you engage in acts or practices prohibited by this Agreement, JessaKae may immediately terminate your participation in the Service and you forfeit all monies owed to you.

(c) As soon as notice of termination of this Agreement is given or upon termination as herein provided, you shall immediately cease marketing and advertising the JessaKae Service and shall eliminate all mention, links and references to our service. Pending the completion of the foregoing, we may hold any Sales Commissions due.

 

14. GENERAL 

This Agreement constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties. This Agreement shall be binding on, and shall inure to the benefit of, the parties to it and their respective heirs, legal representatives, successors and assigns; provided, however, you may not assign any of your rights under this Agreement without written consent from us.This Agreement shall be construed in accordance with, and governed by, the laws of the State of Utah. Each party consents to the exclusive jurisdiction and venue of the courts located in Salt Lake County, Utah for all matters.

CONTACT INFORMATION: JessaKae; sarina@jessakae.com