AFFILIATE PROGRAM TERMS AND CONDITIONS
These Affiliate Program Terms and Conditions (these “Terms”) are made and entered into by and between Equinox Holdings Inc. and the entity or individual who agrees to become an affiliate of Equinox Holdings Inc. (“Partner” or “you”) through the platform provided by Awin Inc. (“Awin”). These Terms are a legally binding contract between you and Equinox Holdings Inc., and by clicking “Join” or similar button and/or by participating as a promotional partner in Equinox Holdings Inc.'s affiliate marketing program as further described herein (the “Program”) facilitated through Awin’s platform (the “Awin Platform”), you agree that you have read and understood, and as a condition to being permitted to participate in the Program you agree to be bound by, these Terms.
1. Compensation.
(a) Referral Fee. In full consideration for you entering into these Terms and for all rights granted by you herein and all services performed by you hereunder, Equinox Holdings Inc. will pay you a “Referral Fee” in the following amount for each Qualifying Purchase as further described in the Partner Obligations section below.
Default commission: $100 per Bike sold.
With respect to any Referral Fee earned by Partner in any calendar month, Equinox Holdings Inc. will direct Awin to release Equinox Holdings Inc.’s payment to Partner for the Referral Fee no later than sixty (60) days after the date of the Qualifying Purchase. Partner shall be solely responsible for the payment of all income, sales, use, excise and other taxes, duties and charges assessed in connection with Partner’s services performed hereunder. Equinox Holdings Inc.’s obligation to pay Referral Fees as provided in this Section shall survive termination of these Terms with respect to any Prospective Customer that completes a Qualifying Purchase prior to the effective date of the termination of these Terms, and Equinox Holdings Inc. will honor any Offer for Prospective Customers that complete a Qualifying Purchase prior to such date.
(b) Expenses. Each party shall be responsible for payment of all its respective expenses relating to its performance under the Program. Other than with respect to the Referral Fee contemplated herein, Equinox Holdings Inc. shall have no obligation to pay Partner any remuneration or compensation of any kind for any reason. For the avoidance of doubt, Equinox Holdings Inc. will not be liable for any broker’s and/or agent’s fees or commissions, taxes or other payments to Partner or third parties that may be payable by Partner.
2. Partner Obligations.
(a) Referrals & Qualifying Purchases. Partner will market the SoulCycle at-home bike (the “Bike”) and related accessories to such persons who could be prospective customers of Equinox Holdings Inc. (collectively, “Prospective Customers”) by providing such Prospective Customers with marketing materials in the form provided to Partner by Equinox Holdings Inc. through the agreed promotional methods (any such distribution of marketing material, a “Referral”) and by offering such Prospective Customers the agreed discounts or other incentives for the Program (the “Offer”) as agreed with Equinox Holdings Inc. through the Awin Platform. Partner will submit any requested modifications to the marketing materials in writing for Equinox Holdings Inc.’s approval (in its sole discretion) and will not publish any modified marketing materials without Equinox Holdings Inc.’s prior written approval in each instance. Each Referral will contain at least one of the following as directed by Equinox Holdings Inc.: (i) a text link or logo link that will automatically connect such Prospective Customer to a website maintained by Equinox Holdings Inc. or (ii) a referral promotional code to be used by such Prospective Customer during the purchase flow, in each such case of (i) or (ii), that is specific to Partner (collectively and in each instance, the “Referral URL”). Equinox Holdings Inc. will pay Partner a Referral Fee in the amount set forth in Section 1 above for each Prospective Customer that purchases the Bike during the term of these Terms either (A) using the Referral URL from Partner or (B) otherwise within thirty (30) days of accessing Partner’s Referral as determined by verified attribution through the Awin tracking cookie associated with such Referral (a “Qualifying Purchase”). The “Order Value” will be determined based on the pre-tax purchase price paid for the Bike and any accessories included within the Qualifying Purchase, but for the avoidance of doubt shall expressly exclude any amounts thereafter payable for the Prospective Customer’s membership subscription to Equinox+.
(b) Grant of Rights. As a material inducement to Equinox Holdings Inc. paying the Referral Fees described herein, Partner hereby grants to Equinox Holdings Inc. and its affiliates, and each of their respective direct and indirect employees, personnel, representatives, contractors, agents, licensees, successors and assigns (collectively, the “Permitted Parties”), a perpetual, royalty-free, worldwide right to link to, re-post, and otherwise promote any Referral(s) and any related promotional communications and materials on any of the Permitted Parties’ owned social Holdings Inc. platforms. Partner hereby waives any right to inspect or approve any use of the Referrals as contemplated by the foregoing.
(c) Partner Restrictions. Partner expressly agrees that it will not: (i) refer to Equinox Holdings Inc. any Prospective Customer that has opted-out of receiving third-party advertising; (ii) provide Equinox Holdings Inc. with any non-public information relating to any Prospective Customer that it is prohibited from sharing; (iii) impose any fees or charges on any Prospective Customer for any access or referral to Equinox Holdings Inc.; (iv) promote any promotions, discounts or other offers relating to Equinox Holdings Inc.’s products or services other than the approved Offer, including by promoting any promotional codes relating to Equinox Holdings Inc.’s products or services other than the authorized Referral URLs; (v) direct Prospective Customers to any other affiliate partners of Equinox Holdings Inc. or otherwise attempt to cause, circumvent, manipulate or otherwise affect the attribution of Qualifying Referrals for any third parties; (vi) include content within any Referral that is protected by intellectual property laws, rights of privacy or publicity, or any other applicable law unless you own or control the rights thereto or have received all necessary consents to permit the use thereof in accordance with all requirements of and rights granted under these Terms; (vii) disparage Equinox Holdings Inc.; (viii) make any statements or engage in any conduct that would otherwise disparage, denigrate, portray in an unfavorable light or bring you, Equinox Holdings Inc., or Equinox Holdings Inc.’s brands or products into public disrepute, contempt or scandal or (ix) engage in any activity that circumvents, impairs, abuses, or otherwise defeats the spirit and purpose of the Program described herein and/or the accuracy or legitimacy of the Referral structure (or any activity that attempts to do any of the foregoing) as determined by Equinox Holdings Inc. in its sole and absolute discretion. In addition, Equinox Holdings Inc. operates a strict policy on paid search activity including, but not limited to, search engines, advertising networks and social Holdings Inc. placements. Equinox Holdings Inc. does not allow paid search activity of any kind relating to Equinox Holdings Inc., the Bike, the Equinox+ app (the “App”) or any other products or services that Equinox Holdings Inc. or its affiliates may offer without the prior written approval of Equinox Holdings Inc. in each instance. In order to avoid any matching issues, Partner must add the following keywords as negative broad match to any and all paid search activity: (i) Equinox+ coupon code, (ii) SoulCycle bike coupon code, (iii) Equinox+ voucher, (iv) SoulCycle bike voucher, and (v) Equinoxplus.com. Any violation of any of the foregoing in this Section 2(d) may result in commissions being withheld or declined and/or Partner’s suspension or termination from the Program, in each case in Equinox Holdings Inc.’s sole and absolute discretion.
(d) Advertising Disclosures. All Referrals promoted by Partner shall (i) clearly and conspicuously disclose your material connection with Equinox Holdings Inc. in a form and using language that is understandable to the ordinary consumer and is adequately prominent and within visual proximity when viewing any Referral materials; (ii) reflect Partner’s honest opinions, beliefs and experiences; (iii) not include any false or misleading statements about the Bike, the App, the Offer or otherwise about Equinox Holdings Inc.; (iv) only include such marketing claims as have been expressly approved for inclusion by Equinox Holdings Inc.; (v) clearly and conspicuously display all terms, conditions and limitations relating to the Offer as provided to you by Equinox Holdings Inc., including without limitation removing any expired Offers and otherwise complying with the IAB's Performance Marketing Advisory Group Voucher Code of Conduct, as applicable; and (vi) comply with all laws, rules, regulations, industry standards, self-regulatory guidelines and best practices, including without limitation (A) all guidance provided by the U.S. Federal Trade Commission including within their Guides Concerning Endorsements and Testimonials (http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf), Native Advertising: A Guide for Business (https://www.ftc.gov/tips-advice/business-center/guidance/native-advertising-guide-businesses) and any similar publications or guidance as may be promulgated from time to time and (B) the U.S. CAN-SPAM Act of 2003. Partner shall maintain and clearly display a consumer-facing privacy policy that is consistent with applicable law, and Partner will ensure that all Referrals and any other services performed in connection with these Terms will comply with its privacy policy and all applicable privacy laws, rules and regulations. In the event Equinox Holdings Inc. notifies Partner of any actual or suspected failure to comply with any of the foregoing, Partner will imHoldings Inc.tely take all corrective measures as appropriate (including imHoldings Inc.tely removing any Referral(s) as necessary) to remedy the same and ensure future compliance with the requirements herein; provided, however, that notwithstanding the foregoing and for the avoidance of doubt, it will be strictly Partner’s responsibility and obligation to ensure its compliance with the requirements herein at all times.
3. Representations and Warranties. Partner, by and through its duly authorized representative, hereby represents and warrants as of the date hereof that (a) Partner has the full power and authority to enter into these Terms and perform its obligations hereunder; (b) the execution, delivery and performance of these Terms by Partner and the consummation of the transactions contemplated hereby (i) have been duly and validly authorized by all requisite corporate action, and no other corporate proceedings on its part are necessary to authorize the execution, delivery or performance of these Terms, and (ii) will not conflict with or result in any breach or violation of or constitute a default, or give rise to a right of termination, cancellation or acceleration of any obligation, or result in the creation of any lien upon any of the properties or assets of Partner, under any provision of any agreement to which Partner is a party or by which any of its properties or assets is bound; (c) these Terms constitutes the valid and binding obligation of Partner, except as enforceability may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and general principles of equity affecting the availability of specific performance and other equitable remedies; and (d) Partner has all consents, licenses and permits necessary or advisable for Partner to perform its obligations hereunder.
4. Confidentiality. Partner understands that it may be exposed to information about Equinox Holdings Inc.’s products and services (including the Bike and the App), marketing strategies, business and operational information and other information and ideas that may not have been disclosed to the public (collectively, the "Confidential Information"). Partner agrees to maintain the strict confidentiality of all Confidential Information disclosed to it (or which otherwise becomes available to it) in connection with these Terms. Partner further agrees to refrain from disclosing or using Confidential Information for any purpose other than participating in the Program in accordance with these Terms. The obligation to maintain the confidentiality of Confidential Information shall survive any termination of these Terms and continue for three (3) years. At any time following Equinox Holdings Inc.’s written request or within ten (10) days following any termination of these Terms, Partner will return or destroy (at Equinox Holdings Inc.’s election) any Confidential Information and will certify in writing its compliance with such requirement. Partner may only disclose Confidential Information as may be required by applicable law, rule, regulation, regulatory authority or other applicable judicial or governmental order or legal process, in which case prior to making such disclosure Partner shall give written notice to Equinox Holdings Inc. describing in reasonable detail the proposed content of such disclosure and shall permit Equinox Holdings Inc. to review and comment upon the form and substance of such disclosure and allow Equinox Holdings Inc. to seek confidential treatment therefor. In addition, Partner understands and agrees that all press inquiries regarding the parties’ relationship (including, without limitation, any Confidential Information) shall be directed to Equinox Holdings Inc. and that Partner will not communicate to the press directly about the subject matter of the Program or these Terms without Equinox Holdings Inc.’s prior written approval.
5. Term and Termination. These Terms shall continue in effect until termination of these Terms or the Program by (a) Equinox Holdings Inc. upon ten (10) days’ written notice to Partner or (b) Partner upon forty-five (45) days’ written notice to Equinox Holdings Inc..
6. Indemnification; Limitation of Liability. Partner agrees to indemnify, defend, and hold harmless Equinox Holdings Inc. and the other Permitted Parties, and its and their respective officers, directors, employees and other personnel, from and against any claims, demands, actions, investigations, settlements, damages, liabilities, losses, penalties, costs, and expenses (including court costs and reasonable attorneys' fees and disbursements) of any kind whatsoever arising from or relating to any alleged breach by you of your representations, warranties or other obligations hereunder. Partner agrees to maintain insurance in commercially reasonable types and amounts in light of its obligations under these Terms, provided that for the avoidance of doubt any insurance coverage shall not be deemed to limit Partner’s obligations hereunder. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EQUINOX Holdings Inc. SHALL NOT BE LIABLE TO PARTNER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING LOSS OF REVENUE, INCOME OR PROFITS, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION OR LOSS OF USE OR DATA) ARISING OUT OF OR RELATING TO THESE TERMS OR ANY BREACH HEREOF (REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING SIMPLE NEGLIGENCE), STRICT PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY), EVEN IF EQUINOX Holdings Inc. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. SUBJECT TO THE FOREGOING, EQUINOX Holdings Inc.’S MAXIMUM AGGREGATE LIABILITY UNDER THESE TERMS OR AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL NOT EXCEED THE AGGREGATE AMOUNT OF REFERRAL FEES PAID TO PARTNER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING SHALL CONSTITUTE EQUINOX Holdings Inc.’S SOLE LIABILITY AND OBLIGATION IN RESPECT OF ANY AND ALL CLAIMS BROUGHT AGAINST IT IN CONNECTION WITH THESE TERMS OR THE TRANSACTIONS CONTEMPLATED HEREBY.
7. Miscellaneous. Equinox Holdings Inc. and Partner will be deemed to be independent contractors and will under no circumstances be considered or be deemed to be in an employer/employee, agent, servant, joint venturer or partner relationship with one another, and neither party will be permitted to hold itself out in any such capacity. These Terms contain the entire understanding between Equinox Holdings Inc. and Partner with respect to the subject matter hereof, may not be altered or waived except by a writing signed by an authorized senior representative of Equinox Holdings Inc., and shall be governed by the laws of the State of New York without regard to choice of law or conflict of law rules or provisions (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Each party irrevocably consents and submits to, and agrees not to contest, the exclusive jurisdiction and venue of the state and federal courts located in the State of New York, County of New York, Borough of Manhattan for all disputes arising out of these Terms, and each party agrees not to initiate any action against the other party in any other jurisdiction or venue. The parties agree that any breach of these Terms by Partner would cause irreparable harm to the Equinox Holdings Inc. and that money damages may be an inadequate remedy to protect Equinox Holdings Inc. therefrom and that Equinox Holdings Inc. will be entitled to seek injunctive relief, specific performance or other forms of equitable relief as a remedy for any such breach. Should any section or part of a section within these Terms be rendered void or unenforceable by any court of competent jurisdiction, the remaining provisions of these Terms shall nevertheless be binding upon the parties with the same effect as though the void or unenforceable part had been severed and deleted. Any notices to Equinox Holdings Inc. delivered hereunder must include a copy delivered via email to legalnotice@equinox.com
