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Zara Affiliate Agreement

This Zara Affiliate Agreement (referred to as this “Agreement”) is a binding agreement between the person (“you,” “your”) that applies to participate as an affiliate in the Zara affiliate marketing program (the “Program”) and Zara USA, Inc. (“Zara,” “we,” “us,” “our”). By submitting an application to participate in the Program, you agree to be legally bound by this Agreement. The Program is operated on behalf of Zara by Captiv8, Inc. (“Captiv8”).

To participate in the Program, you need to submit a complete Program application at https://ambassadors.zara.com/us/ (the “Platform”). We will evaluate your application and will notify you through the Platform and via email of your acceptance or rejection. Employees of Zara, Captiv8 or of any of our respective affiliates may not enroll or participate in the Program. We may reject your application for any reason, in our sole discretion.

This Agreement requires you to arbitrate any disputes arising under this Agreement in an individual arbitration and not a class arbitration. You acknowledge and understand that by entering into this Agreement, you waive any right to a trial by jury or to otherwise bring any claims in court arising out of this Agreement or to participate in any type of class action or class proceeding relating to this Agreement. See Section 16 below.

The following provisions (Sections 1 – 7) will be effective if we accept your application to participate in the Program.

PROCESSED LINKS
(a) To permit accurate tracking, reporting and commission accrual, we will give you access to links to our product pages at Zara.com (the “Zara Site”) that you will be able to process for use in the Program (the “Processed Links”). For so long as you continue to participate in the Program, you may post Processed Links on any website that we approved as part of application process (your “Site”) and may transmit Processed Links to potential Purchasers (as defined below) via email or otherwise, provided that you comply with all applicable laws and regulations relating to unsolicited emails or other communications and with the terms of service of any social media or other websites or services.

(b) You acknowledge and understand that if you do not use the Processed Links correctly, we will not be able to track sales attributable to your efforts, so you will not receive any Commissions (as defined below).

(c) The Processed Links may include text and images, including our branding. You must not change any Processed Link in any way.
YOUR COMMISSIONS
(a) The following terms relating to your right to receive commissions hereunder (“Commissions”) will have the meanings indicated:
(i) “Commission Rate” means the percentage set forth on our Affiliate Commission Schedule, as it may be modified by us in our sole discretion from time to time.  Commission rate shall be limited to a maximum of 8% per item unless otherwise provided in the Affiliate Commission Schedule.

(ii) “Net Revenue” with respect to any Qualifying Product Sale means the gross amounts paid by Product Purchaser for the applicable Product purchased, less any refund issued to that Product Purchaser for returning such Product within the Return Period.

(iii) “Product” means an item of merchandise that we or any of our affiliates offers for sale on the Zara Site.

(iv) “Product Page” with respect to any Product means the page of the Zara Site on which a Purchaser may select such Product, which will cause such Product to be placed in the Purchaser’s virtual shopping cart.

(v) “Product Purchaser” means, with respect to each Qualifying Product Sale, the consumer to whom such Qualifying Product Sale was made.

(vi) “Qualifying Product Sale” means a Product sale on the Zara Site to a person (other than you or any of your friends, family members or business associates) who navigated to any Product Page using your Processed Link, provided that such sale occurs within 24 hours after such person’s use of your Processed Link to navigate to any Product Page.

(vii) “Return Period” means, with respect to any Qualifying Product Sale, the period of time during which the applicable Product Purchaser may return the applicable Product for a full refund based on our then-current applicable returns policy.

(b) Subject to the other provisions of this Agreement (including, but not limited to, Section 2(c)), we will cause Captiv8 to pay you a Commission for each Qualifying Product Sale equal to the Net Revenue generated by such sale multiplied by the Commission Rate, less any taxes that we or Captiv8 are required by law to withhold.  Payment of each Commission will be due within 75 days after the Return Period with respect to the applicable Qualifying Product Sale expires.

(c) If, within 24 hours of the time that a Product Purchaser purchases any Product from the Zara Site, such Product Purchaser navigated to a Product Page one or more times using your Processed Link and one or more times using a link posted or transmitted by another Program participant, the Commission associated with that purchase will be paid to the Program participant (i.e., you or such other Program participant) that posted or transmitted the link used by such Product Purchaser most recently before such purchase.  For example, if a Product Purchaser links to any Product Page using your Processed Link, then one hour later links to any Product Page using a link posted by another Program participant, and then one hour after that purchases Products at the Zara Site, the entire commission for such purchase will be paid to the other Program participant.
POLICIES AND PRICING
Product Purchasers will be deemed to be our customers. Accordingly, all of our rules, policies and operating procedures concerning customer orders, customer service, and product sales will apply to those customers. We may change our policies and operating procedures at any time. For example, we will determine the prices to be charged for Products in accordance with our own pricing policies. Product prices and availability may vary from time to time. We will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any particular product.
ZARA MARKS
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 navigates to the Zara Site via your Processed Link ("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, we grant you a limited, worldwide, nonexclusive, 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 anyone without our prior written approval. You agree to maintain and adhere to your privacy policy, as posted and updated on your site.
COMPLIANCE
(a) Except with respect to your Processed Links, you are solely responsible for the content and manner of marketing activities related to your obligations and activities under this Agreement. All of your activities under this Agreement must be professional, tasteful, respectful, honest, accurate, up-to-date and appropriate and must comply with applicable rules, regulations and laws, including any relating to the content and nature of any advertising or marketing (such as the Endorsement and Testimonial Guidelines published by the United States Federal Trade Commission (“FTC Guidelines”)). For the avoidance of doubt, and without limiting any other legal and regulatory compliance obligations under this Agreement, you will include a disclosure statement (as required by the FTC Guidelines), as well as any other disclosures that we may require, within any and all web pages, emails, blogs posts, or social media posts where you post Processed Links or Zara branding.

(b) Without limiting the generality of the foregoing, (a) you will not post or link to, or otherwise be associated in any way with, any site, group or content that (i) is violent, pornographic, obscene or otherwise offensive, (ii) infringes or otherwise violates any intellectual property rights, rights of publicity or other rights of any person or entity, (iii) is libelous, (iv) is unlawful, or (v) disparages any person or group, including, but not limited to, on the basis of their race, nationality, gender, gender identity, sexual orientation, age, weight, disability or otherwise, and (b) you will not in connection with your Site or business or the promotion of the Zara Site or Products: (i) use any software that gathers information through the customer's Internet connection without his or her knowledge; (ii) install spyware (or cause spyware to be installed) on another person's computer, or (iii) use a context based triggering mechanism to display an advertisement that partially or wholly covers or obscures paid advertising or other content on a website in a way that interferes with a user's ability to view the website, (iv) use any opt-out downloads (i.e., any software, program, script, tool or element that would automatically download to a user's computer or that would become operative when the user accesses the Internet unless the user takes affirmative action to prevent the download); or (v) use browser-embedded contextual targeting applications or other applications which serve Advertising on Zara’s competitors’ websites or on any other website other than your Site. "Advertising" means (i) pop-up ads and pop-unders, (ii) in-browser ads, and (iii) highlighting of Site content and redirecting to other Sites, regardless of whether any such Advertising is served directly by you or is provided or purchased from a third-party provider.

(c) We disclaim all liability for the matters addressed in this Section 6. You will indemnify and hold us and Captiv8 harmless from all claims, damages and expenses (including, without limitation, attorneys' fees) relating to or arising out of or in connection with (a) your activities under or relating to this Agreement or the Program or (b) any breach of your obligations under this Agreement.
REPOSTING RIGHT
You hereby grant us a nonexclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up license to repost on any social media service, site or application any text, image, audio visual work or other content or material relating to Zara or any of our products that you post on any of your social media services, sites or applications at any time while you are enrolled in the Program (collectively, the “Licensed Content”) and to duplicate, copy, distribute, publicly display and publicly perform the Licensed Content for the purpose of exercising such right to repost the same. Our license includes the right to adapt the Licensed Content in connection with any authorized reposting. You warrant that, with the exception of any Zara Marks included in the Licensed Content, (i) you own all intellectual property rights in and to the Licensed Content or have been authorized by the owner of such rights to grant this license and (ii) our exercise of our rights under this license will not infringe or otherwise violate any intellectual property or other right of any person, including, without limitation, any copyrights, rights of publicity, trademark rights and rights relating to defamation.

The following provisions (Sections 8 – 20) will be effective whether or not we accept your application to participate in the Program.

TERM OF YOUR PARTICIPATION IN THE PROGRAM AND OF THIS AGREEMENT
(a) You or we may terminate your participation in the Program at any time, for any reason, with or without cause, upon notice.

(b) The term of this Agreement will begin when you submit an application to participate in the Program and will terminate (i) if we reject your application or (ii) when your participation in the Program terminates.  If this Agreement terminates based upon our rejection of your application, we subsequently accept your application and you thereafter elect to participate in the Program, or if this Agreement terminates based on the termination of your participation in the Program and your participation in the Program later resumes (whether based on a new application or otherwise with our consent), then this Agreement will be promptly reinstated and in full force and effect.

(c) The provisions of this Agreement that, by their sense and context, are reasonably intended to survive the termination of this Agreement shall remain effective and enforceable thereafter.  Those provisions include, but may not be limited to, Sections 4, 5, 6(c), 7, 8(d) and 11 - 20.

(d) Upon termination of this Agreement, you will immediately remove any Processed Links or Marks from your Site or other online presence.  Our obligation to pay Commissions based on Qualifying Product Sales that occurred during the term of this Agreement will survive termination of this Agreement, provided that we may withhold Commissions at termination if we, in our sole discretion, believe that you have breached this Agreement and that such Commissions were earned in violation of this Agreement.
AMENDMENTS
We may amend this Agreement, at any time and in our sole discretion, upon notice to you. Any such amendment will be effective unless you terminate your participation in the Program within three business days after our notice to you of the amendment.
RELATIONSHIP OF PARTIES
Both of us are independent contractors, and 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 Site or otherwise, that reasonably would contradict anything in this Section 10.
LIMITATION OF LIABILITY
We will not be liable for indirect, special or consequential damages arising in connection with this Agreement or the Program, even if we have been advised of the possibility of such damages. Further, our aggregate liability arising with respect to this Agreement and the Program will not exceed the total Commissions that accrued under this Agreement within one (1) year of the date your claim arose or $100, whichever is greater. All claims made hereunder by you against us shall be made within 180 days of the act or omission which forms the basis of such claims.
DISCLAIMERS
We make no express or implied warranties or representations with respect to the Program or any products sold through the Program (including, without limitation, warranties of fitness, merchantability, noninfringement, or any implied warranties arising out of a course of performance, dealing, or trade usage). In addition, we make no representation that the operation the Zara Site or the Program will be uninterrupted or error-free, and we will not be liable for the consequences of any interruptions or errors or termination of the Zara Site, the Program or any product or service.
ASSIGNMENT AND SUCCESSORS
You may not assign this Agreement, by operation of law or otherwise, without our prior written consent, and any purported assignment will be null and void and of no force or effect. 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.
SCOPE OF AGREEMENT
This Agreement and the Commission Schedule constitutes the entire agreement and understanding between you and us with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous written or oral agreements or representations between you and us.
ATTORNEYS' FEES
Subject to Section 17, 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.
NOTICES
Any notices that we provide to you under or relating to this Agreement or the Program may be delivered to you at the email address you provided in your application to participate in the Program, and you will be conclusively presumed to have received any such notice upon transmission. You are solely responsible for maintaining and regularly checking that email account. Any notices from you to us will be sent via email to help@captiv8.io.
DISPUTE RESOLUTION

Please read this “dispute resolution” provision very carefully. It limits your rights in the event of a dispute between you and us.

(a) This Section 17 will apply only if you reside in the United States. If you do not reside in the United States, this Section 17 will not apply and will not be binding on you, us or Captiv8.

(b) You, we and Captiv8 mutually agree that any past, present and future dispute, claim, or controversy between you and us, you and Captiv8 or you, us and Captiv8 that arises out of or relates to (i) this Agreement, (ii) the breach, termination, enforcement, interpretation or validity hereof, including the determination of the scope or applicability of the agreement to arbitrate hereunder, or (iii) the Program (collectively, “Disputes”) shall be determined by arbitration, unless the Dispute is subject to an exception to this agreement to arbitrate set forth below. You, Zara and Captiv8 further agree that any arbitration pursuant to this Section 17 shall not proceed as a class, group or representative action. The award of the arbitrator may be entered in any court having jurisdiction.

Before filing a claim against us or Captiv8, you agree to try to resolve the Dispute informally by notice to Zara or Captiv8 of the actual or potential Dispute. Similarly, Zara or Captiv8 will provide notice to you of any actual or potential Dispute to endeavor to resolve any claim they or either of them may possess informally before taking any formal action. The Party(ies) that provides the notice of the actual or potential Dispute (the “Notifying Party”) will include in that notice (a “Notice of Dispute”) your name, the Notifying Party’s contact information for any communications relating to such Dispute, and sufficient details regarding such Dispute to enable the other Party(ies) (the “Notified Party(ies)”) to understand the basis of and evaluate the concerns raised. If the Notified Party(ies) (or either of them) responds within ten (10) business days after receiving the Notice of Dispute that it is ready and willing to engage in good faith discussions in an effort to resolve the Dispute informally, then each party to the Dispute shall promptly participate in such discussions in good faith.
If, notwithstanding the Notifying Party’s(ies’) compliance with all of its obligations under the preceding paragraph, a Dispute is not resolved within 30 days after the Notice of Dispute is sent (or if the Notified Party(ies) fails to respond to the Notice of Dispute within ten (10) business days), the Notifying Party(ies) may initiate an arbitration proceeding as described below. If any party purports to initiate arbitration without first providing a Notice of Dispute and otherwise complying with all of its obligations under the preceding paragraph, then, notwithstanding any other provision of this Agreement, the arbitrator(s) will promptly dismiss the claim with prejudice and will award the other party(ies) to such Dispute all of its costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred in connection with such Dispute.

(d) We all agree to arbitrate.

You, Zara and Captiv8 each agrees to resolve any Disputes that are not resolved informally as described above through final and binding arbitration as discussed herein, except as set forth under “Exceptions to Agreement To Arbitrate” below.
You, Zara and Captiv8 agree that the American Arbitration Association (“AAA”) will administer the arbitration under its Commercial Arbitration Rules (the “Rules”). The Rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration.) Arbitration will proceed on an individual basis and will be handled by a sole arbitrator. The single arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within fourteen (14) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules. The arbitrator(s) shall be authorized to award any remedies, including injunctive relief, that would be available to you in an individual lawsuit, subject to any effective and enforceable limitations of liability or exclusions of remedies set forth herein. Except as and to the extent otherwise may be required by law, the arbitration proceeding and any award shall be confidential.
You, Zara and Captiv8 further agree that the arbitration will be held in the English language in New York, New York, or, if you so elect, all proceedings can be conducted via videoconference, telephonically or via other remote electronic means. Filing costs and administrative fees shall be paid in accordance with the AAA Rules; provided that the prevailing Party will be entitled to recover its reasonable attorneys' fees, expert witness fees, and out-of-pocket costs incurred in connection with the arbitration proceeding, in addition to any other relief it may be awarded. This agreement to arbitrate shall be construed under and be subject to the Federal Arbitration Act, notwithstanding any other choice of law set out in this Agreement.

(e) You, Zara and Captiv8 agree that, notwithstanding anything to the contrary in the Rules, the arbitration of any Dispute shall proceed on an individual basis, and neither you, Zara nor Captiv8 may bring a claim as a part of a class, group, collective, coordinated, consolidated or mass arbitration (each, a “Collective Arbitration”).

Without limiting the generality of the foregoing, a claim to resolve any Dispute against us or Captiv8 will be deemed a Collective Arbitration if (i) two (2) or more similar claims for arbitration are filed concurrently by or on behalf of one or more claimants; and (ii) counsel for the claimants are the same, share fees or coordinate across the arbitrations. “Concurrently” for purposes of this provision means that both arbitrations are pending (filed but not yet resolved) at the same time.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER YOU, ZARA NOR CAPTIV8 SHALL BE ENTITLED TO CONSOLIDATE, JOIN OR COORDINATE DISPUTES BY OR AGAINST OTHER INDIVIDUALS OR ENTITIES, OR ARBITRATE OR LITIGATE ANY DISPUTE IN A REPRESENTATIVE CAPACITY, INCLUDING AS A REPRESENTATIVE MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. IN CONNECTION WITH ANY DISPUTE, ANY AND ALL SUCH RIGHTS ARE HEREBY EXPRESSLY AND UNCONDITIONALLY WAIVED. Without limiting the foregoing, any challenge to the validity of this paragraph shall be determined exclusively by the arbitrator.

(f) Notwithstanding your, Zara’s and Captiv8’s agreement to arbitrate Disputes, you, Zara and Captiv8 each retains the right to bring an individual action in small claims court. Further, except as otherwise required by applicable law or provided in this Agreement, in the event that the agreement to arbitrate is found not to apply to you or any Dispute, you, Zara and Captiv8 agree that any judicial proceeding may only be brought in accordance with Section 18(a).

(g) With the exception of the provisions of this agreement to arbitrate that prohibit Collective Arbitration, if a court decides that any part of this agreement to arbitrate is invalid or unenforceable, then the remaining portions of this agreement to arbitrate shall nevertheless remain valid and in force. In the event that a court finds the prohibition of Collective Arbitration to be invalid or unenforceable, then the entirety of this agreement to arbitrate shall be deemed void (but no provisions of this Agreement unrelated to arbitration shall be void), and any remaining Dispute must be litigated in court pursuant to the preceding paragraph.

(h) The existence of and all information regarding any Dispute will be held in strict confidence by the parties and will not be disclosed by any party except as reasonably necessary in connection with the conduct of the arbitration or the confirmation or enforcement of any arbitral award. Any such permitted disclosure will, to the maximum extent reasonably practicable, be made subject to obligations of confidentiality at least as stringent as the provisions of this paragraph. If any disclosure of information regarding any Dispute is required under applicable law, the parties shall reasonably cooperate with one another to obtain protective orders or otherwise to preserve the confidentiality of such information.

(i) We warrant that Captiv8 has authorized us to enter into this agreement to arbitrate on Captiv8’s behalf, and that Captiv8 will be bound by this Section 17.

GOVERNING LAW AND VENUE
(a) Subject to Section 17, any action nor proceeding arising out of or in connection with this Agreement will be brought in a court of competent jurisdiction in the city of New York, state of New York. Both you and we irrevocably consent to venue and personal jurisdiction there; provided that either Party may bring any action to confirm an arbitral award in any court having jurisdiction.

(b) This Agreement will be construed and enforced in accordance with the laws of the United States and the State of New York applicable to contracts entered into and performed in New York by residents thereof.
SEVERABILITY

Subject to Section 17(g), if any provision of this Agreement is found by a court or arbitrator to be invalid, ineffective or unenforceable, that provision shall be stricken from this Agreement and the rest of this Agreement shall remain valid, effective and enforceable. Further, the parties shall mutually agree upon a valid, effective and enforceable amendment to this Agreement that as closely as is reasonably practicable achieves the intent and purpose of the invalid, ineffective or unenforceable provision.

WAIVER

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.