Equator Coffees
Program Terms
EQUATOR COFFEES AFFILIATE PROGRAM TERMS & CONDITIONS
These Equator Coffees Affiliate Program Terms & Conditions (the “Agreement”) contain terms and conditions that apply to, and govern, your participation as an Affiliate (defined below) in Equator Coffees’ Affiliate Program (the “Program”) and the establishment of a link from your website or other digital location (also referred to as “your website”) to www.equatorcoffees.com (also referred to as “our website”). As used in this Agreement, “we” and “our” shall mean Equator Coffees, LLC and/or its parents, subsidiaries, and related entities (collectively, “Equator”), and “you” and “your” shall mean the Affiliate. Equator and Affiliate are sometimes individually referred to as a “Party” and collectively, “Parties.”
By submitting your information to participate in the Program: (i) you are confirming that you have read and understand this Agreement; (ii) you represent and warrant that you are lawfully able to, and possess the required authority to, enter into contracts on behalf of the entity applying to become an Affiliate; and (iii) you agree to be bound by, and will continue to comply with, the terms and conditions set forth herein throughout the full duration of your participation in the Program. Equator reserves the right to make changes to the Program and this Agreement, at any time, and such changes will become effective immediately upon being posted on our website. TO THE EXTENT ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS PROVISIONS. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE POSTING OF ANY SUCH CHANGE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
As a condition of your participation in the Program, you must comply with all applicable laws, rules, and regulations pertaining and applicable to your participation in the Program, including, without limitation, the requirement to make certain disclosures in accordance with U.S. Federal Trade Commission (“FTC”) Endorsement and Testimonial guidelines. Without limiting the foregoing, you must clearly and conspicuously disclose your affiliation with Equator as set forth in the FTC guidelines and as more fully set forth in Section 3(b) below.
MISUSING THE EQUATOR BRAND, PARTICIPATING IN PROHIBITED ACTIVITIES AND/OR FAILING TO COMPLY WITH THIS AGREEMENT MAY RESULT IN A LOSS, REDUCTION AND/OR OFFSET OF REFERRAL FEES (AS DEFINED BELOW) FROM SALES MADE THROUGH YOU THAT DO NOT COMPLY WITH THE PROGRAM TERMS OR MAY ALSO RESULT IN A TERMINATION OF YOUR PARTICIPATION IN THE PROGRAM.
Definitions.
“Affiliate” means a person or company that participates in the Program.
“Link” means any type of banner or graphical or text link provided by Equator to Affiliate to be displayed, distributed, or placed on an Affiliate’s website that can monitor clicks, sales, impressions, and other tracked activities achieved through the display, distribution, or placement of such Link.
“Qualified Customer” means a purchaser of Equator products on Equator’s website within ninety (90) days after initially visiting Equator’s website by following a Link on Affiliate’s website.
“Referral Fees” shall have the meaning set forth in Section 5.
Enrollment in the Program.
Enrollment Process. To begin the enrollment process, you must submit your information to Equator with this Agreement. Once received, Equator will evaluate your submission and will notify you of your acceptance or rejection for participation in the Program. Equator may reject your submission if Equator determines (in its sole discretion) that your website is unsuitable for the Program or for any reason. In the event that Equator does not accept your submission, for any reason, you may reapply to the Program at any time; provided, however, that you may not (i) reapply using the same domain name/URL, or (ii) apply using a domain name/URL that is different from that of the original submission and then subsequently add the rejected domain name/URL to your Affiliate account. Equator’s acceptance criteria for the Program are subject to change by Equator, in its sole discretion, at any time without prior notice. If you are accepted to participate in the Program and your website is thereafter determined (in Equator’s sole discretion) to be unsuitable based on the Program’s acceptance criteria or for any reason whatsoever, Equator may terminate this Agreement and, upon such a termination, you may no longer use the Link (as defined below) to Equator’s website.
Unsuitable Sites. Your website may be found to be unsuitable if it falls under any of the following conditions. Conditions for an unsuitable website are, but are not limited to, sites that:
Contain or promote materials that are sexually explicit, obscene, pornographic, excessively violent, defamatory, or fraudulent;
Promote violence or hate towards any persons or groups;
Promote discrimination based on race, sex, age, religion, nationality, disability or sexual orientation;
Promote illegal activities;
Promote the sale or use of tobacco products or gambling;
Violate any federal, state or local law;
Misrepresent themselves as being an Equator website by using features and or characteristics that are unique to Equator;
Otherwise violate intellectual property rights of Equator or its affiliates;
Infringe on Equator’s or any third party’s intellectual property, publicity, privacy or other rights;
Do not clearly state an online privacy policy to their visitors;
Require a user name and password to access;
Are non-US based sites or sites that primarily serve a non-US based audience;
Are unable to direct a reasonable amount of traffic by way of sales volume, clicks and page views to our website;
Excessively use pop-ups;
Require downloads and/or knowingly download software to visitors’ computers;
Are under construction;Contain any viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data, or personal information;
Contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website; or
Are otherwise considered, in Equator’s sole judgment, offensive or otherwise inappropriate for the Program.
Unsuitable Activities. Your submission may be rejected by Equator if Equator determines, in its sole discretion, that your website contains or otherwise involves prohibited activities. You agree that, as a condition of your acceptance and participation in the Program, you will not undertake or engage in any of the following practices (and any violation of this Section shall be deemed a material breach of this Agreement and may result in immediate termination from the Program):
Use of the Equator name or any variation thereof in any manner not expressly authorized by this Agreement;
Use or incorporation of the word “Equator” or variations or misspellings thereof in the domain name(s) of your website(s), or in hidden text or source code;
Bidding on Equator brand keywords, variations or misspellings, or keyword strings (e.g., “equator,” “equatorcoffees.com,” “equator coffee store,” etc.) in search engines or content networks;
Use of Equator brand keywords, keyword strings, or variations or misspellings thereof, in the headline, display URL, or description of pay-per-click ads or ads or content network ads;
Use of your Link as the destination URL in any paid advertisement (a practice known as direct-linking);
Engineering your website in such a manner that pulls or redirects Internet traffic for Equator brand keywords away from www.equatorcoffees.com via natural search optimization. Prohibited engineering techniques include, but are not limited to:
Using Equator or Equator brand keywords in the title tag, domain name, meta tags, or other on-page factors that influence (directly or indirectly) rankings;
Engaging in cookie stuffing, forced clicks, or the use of pop-ups or pop-unders or false or misleading links on your website.
Attempting to modify or alter our website in any way; or
Making any representation or warranty, express or implied, or creating an appearance that a visitor to your website is visiting our website (e.g., “framing” www.equatorcoffees.com) without our prior written consent.
Links and Disclosures.
Using the Link. If you are accepted into the Program, we will make the Link available to you, subject to the terms and conditions of this Agreement, which you may display as often and in as many areas on your website as you desire. The Link contains site-specific tracking information that identifies your website as a member of the Program and will establish a link from your website to our website. Only a valid Link obtained from Equator will be tracked for purposes of determining Referral Fees that you may be eligible to receive for sales of Equator products generated through your website. You may only use the Link for your website and you are prohibited from distributing the Link to third parties, unless agreed to in writing by Equator. Equator may modify the Link at any time, in its sole discretion, and your use of the Link must be in compliance with this Agreement at all times. Any statements, information, or materials with respect to Equator that will be displayed on your website must be approved by Equator in advance.
FTC Disclosures. In compliance with certain FTC rules and regulations, you must clearly and conspicuously identify yourself as an Affiliate on all pages, social media platforms, and content where a Link is placed. You shall also include a clear and conspicuous disclosure within any and all pages, blog posts, social media posts, or any other content that provide an assessment or endorsement of Equator products and where a reader and/or consumer might not understand that the Link is a paid advertisement. You agree that, if we reasonably believe that any messaging you provide regarding the Link and Program is in violation of the rules and regulations promulgated by the FTC, we may, in our sole discretion, withhold Referral Fees or suspend and/or terminate your participation in the Program. For more information regarding the FTC’s various guidelines, please visit: https://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf (Dot Com Disclosures Guidelines) and https://business.ftc.gov/advertising-and-marketing/endorsements (Endorsement Guidelines). It is your responsibility to be in compliance with such rules and regulations and you are hereby advised to seek and obtain legal advice regarding their applicability to you, your website, and your promotional activities.
Order Processing. Equator will process orders placed by Qualified Customers who follow a Link from your website to our website in accordance with applicable legal requirements. We will be responsible for all order processing and fulfillment. We reserve the right to reject or cancel, in our sole discretion, an order that does not comply with certain requirements that we periodically establish from time to time or for any reason at all. We will track sales to Qualified Customers who purchase Equator products from our website by following a Link from your website. To ensure accurate tracking, reporting, and accrual of Referral Fees, you must ensure that the Link between your website and our website is properly formatted. Equator will not be responsible, or liable to you, for an improperly formatted Link irrespective of whether you have made amendments to the underlying source code or not. Equator cannot track or provide credit for sales from Qualified Customers that do not have browsers with their cookies settings enabled, and you will not be entitled to claim Referral Fees under such circumstances.
Referral Fees. Fees due to you for a purchase of Equator products by a Qualified Customer will be calculated and paid pursuant to the terms and conditions set forth in this Section (“Referral Fees”).
Purchases by Qualified Customers. Referral Fees will be calculated based on the rate set forth below for each purchase of Equator products by a Qualified Customer. A purchase by a Qualified Customer does not include:
a purchase by a Qualified Customer who is also associated with any other Equator reseller, referral, or other program;
a purchase by a Qualified Customer who is not current on its payment obligations to Equator or Affiliate;
a purchase by a Qualified Customer prior to the Affiliate joining the Program or was not properly tracked through a Link;
a purchase that Equator suspects, in its sole discretion, is the result of fraud, which includes but is not limited to, purchases that are made through the use of software that generates real or fictitious information or multiple accounts from the same customer;
a purchase by a Qualified Customer that has an excessive cancellation rate, as determined by Equator in its sole discretion;
a purchase by a Qualified Customer that is in violation of any policies or documentation relating to the Program; or
a purchase by a Qualified Customer who was offered or received a coupon, refund, credit, or discount from an Affiliate.
Withholding of Referral Fees. Equator reserves the right to: (1) withhold payment of Referral Fees to the extent Equator believes, in its sole discretion, that such Fees are potentially the result of fraud by a Qualified Customer or by you; (2) suspend payment of Referral Fees to the extent Equator believes, in its sole discretion, that the Qualified Customer or you have engaged in improper activity or a potential breach of this Agreement; (3) deduct from your Referral Fees any and all fees allegedly due to you as a result of any fraudulent, questionable, or cancelled purchase by a Qualified Customer; (4) withhold or decline Referral Fees to the extent that Equator, in its sole discretion, determines a Qualified Customer or you have an excessive cancellation rate; or (5) deduct from your Referral Fees any amount resulting from the use of promotional codes that are not specifically communicated to you by or on behalf of Equator (for example, codes from other Equator promotional emails or other partner or non-partner communications). You are responsible for monitoring, tracking, and following up on the payment, denial, and withholding of Referral Fees and Equator is under no obligation to notify you of the status of your Referral Fees. Any changes to decisions relating to the cancellation or withholding of Referral Fees are made in Equator’s sole discretion.
Amount of Referral Fees. During the Term (as defined below), You will be entitled to Referral Fees of 10% percent of the Net Revenue (as defined below) received by you for a purchase of Equator products by a Qualified Customer. In order for a purchase of Equator products to generate Referral Fees: (a) the Qualified Customer must use a browser that has its cookies settings enabled and must follow your Link to purchase Equator products from our website; (b) the purchase must be made in accordance with this Agreement and you must not be in breach of this Agreement; and (c) the Qualified Customer must not have purchased such products by following a Link from another Affiliate’s website within ninety (90) days of the Qualified Customer’s initial visit to our website. We will pay Referral Fees if the Qualified Customer makes a purchase of Equator products after re-entering our website within ninety (90) days after the date of initial visit by such Qualified Customer, unless the Qualified Customer enters our website through another Affiliate’s Link or from another marketing link (e.g., paid search, social media, email correspondence, or other marketing channels). For purposes of this Section, “Net Revenue” means the revenue actually received by us from the sale of Equator products to a Qualified Customer, excluding sales taxes, value added tax, packaging, shipping, insurance, refunds, and payments not honored by a financial institution.
Processing of Referral Fees. Subject to Section 5(c), Referral Fees will be processed within sixty (60) days after the end of the calendar month in which the purchase by the Qualified Customer was made, provided that Equator may hold Referral Fees until they have accrued to $100. You are responsible for (1) notifying us of any changes to your address or payment information; (2) informing us of which of the available payment methods offered by Equator you prefer and any updates thereto; and (3) providing accurate tax and payment information required to process payment of Referral Fees. Equator, in its sole discretion, reserves the right to modify the list of available payment methods or the payment schedule at any time. You agree to file any dispute relating to Referral Fees within thirty (30) days from the date the payment would have been made by contacting Equator and requesting that the Referral Fees be paid; otherwise our payment of the Referral Fees will be deemed to be accepted by you in satisfaction of all purchases by Qualified Customers that would otherwise generate Referral Fees in the immediately preceding month if no such request is received by Equator within such thirty (30) day period and you will forever forfeit any rights you might have to a potential payment dispute claim. You are required to submit a W8/W9 tax form before any Referral Fees accrue and, if Equator does not receive the necessary tax or payment information within thirty (30) days of a purchase by a Qualified Customer that would otherwise generate Referral Fees, you will not be entitled to Referral Fees and no such Referral Fees will be owed with respect to such purchase. You are responsible for payment of all taxes relating to the Referral Fees you receive from us under this Agreement and we will issue a Form 1099 to those Affiliates whose earnings meet or exceed the applicable threshold amount.
Qualified Customer Policies and Pricing. Qualified Customers who purchase Equator products through the Program will be deemed to be customers of Equator, without affecting their status as your customer. All of our rules, policies, and operating procedures concerning customer orders, customer service, and sales will apply to Qualified Customers when using our website. We may change our policies and operating procedures at any time in our sole discretion. Equator will determine the prices to be charged for products sold under the Program and in accordance with our own pricing policies. Product prices and availability might vary from time to time. Due to occasional changes in price, you may not include price information in your product descriptions on your website. Equator will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any specific product or the error-free/uninterrupted operation of our website.
Term and Termination.
Term. The term of this Agreement will begin when you submit your information and this Agreement to us and will end on the earlier of: (x) Equator’s rejection of your submission to be an Affiliate in accordance with Section 2 and (y) when terminated by either Party in accordance with this Section 7 (the “Term”). Either Party may terminate this Agreement at any time, with or without cause, by providing thirty (30) days prior notice to the other Party. Equator may suspend or terminate this Agreement (at its option) immediately if you breach any term or condition of this Agreement or if Equator determines, in its sole discretion, that purchases of Equator products were obtained fraudulently or through misrepresentation (in which case, Equator may withhold payment of associated Referral Fees pending the outcome of an investigation of the suspected fraud or misrepresentation).
Effect of Termination. Termination of this Agreement shall also terminate any outstanding, unfulfilled orders of Equator products by a Qualified Customer. All rights to payment, causes of action, and any provision that, by their terms, are intended to survive termination, shall survive termination of this Agreement. Upon termination of this Agreement, you shall immediately cease use of, and remove from your website, the Link and all Equator-related content, including the Licensed Materials (as defined below). You agree to return to Equator any and all documentation or other media embodying Equator’s image, Trademarks (as defined below) or other intellectual property. You further agree that you will not: (1) use the Equator name, or any variation thereof, in any manner not expressly authorized by Equator in writing; (2) create, publish, distribute, or share any materials (whether written or verbal) that make reference to Equator without first obtaining our prior written consent, which may be withheld in our sole discretion; or (3) disparage Equator or any of its officers, directors or employees or otherwise take any action that could reasonably be expected to adversely affect Equator’s reputation. For purposes of this Agreement, “disparage” shall mean any negative statement, whether written or oral, about Equator or any its officers, directors or employees or Equator products.
Intellectual Property.
Trademark License to Affiliate. Subject to the terms and conditions of this Agreement and during the Term of this Agreement, Equator hereby grants to you a revocable, non-exclusive, non-transferable, and non-sublicenseable (through multiple tiers) license to (1) use the Link made available to you on your website in accordance with the terms of this Agreement and (2) use our Trademarks (as defined below) (collectively, “Licensed Materials”) solely in connection with the Link, in each case, for the sole purpose of generating the sale of Equator products. You agree that each Equator Trademark must appear by itself and must be surrounded by sufficient empty space such that its placement would avoid unintended associations with any other material (including, without limitation, type, photography, borders, and edges). For purposes of this Agreement, “Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.
Trademark License to Equator. You hereby grant us a non-exclusive license to use your Trademarks in a list of Affiliates and in any advertising or other marketing materials used to promote Equator, Equator products, or the Program. This license shall terminate upon the termination of your participation in the Program, unless agreed to by the Parties otherwise.
Usage of Licensed Materials. You shall not use the Licensed Materials for any purpose, including, without limitation, in a direct mail or email, other than to generate the sale of Equator products from your website without first submitting a sample of such use to us and obtaining our prior written consent, which may be withheld in our sole discretion. You may only use Licensed Materials in emails, newsletters, or other marketing materials that are approved by us in advance and that comply with all applicable laws, including, without limitation, the CAN-SPAM Act. You shall not display the Licensed Materials in any manner which implies Equator’s sponsorship or endorsement of your products or services. Equator reserves all rights in and to the Licensed Materials and your license to the same is limited to the terms and conditions set forth herein. We reserve the right, in our sole discretion, to revoke your license to the Licensed Materials at any time.
Warranties; Limitations of Liability; Indemnification.
Representations and Warranties. You hereby represent and warrant that:
you have reviewed and understand this Agreement and agree to be bound by its terms;
this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms, and you agree not to contest the validity or enforceability of this Agreement;
any material displayed on your website will not include content that renders the website to be an unsuitable site under the terms of Section 2(b); and
you are the sole and exclusive owner of your Trademarks and you have the power to grant Equator the license to such Trademarks as set forth herein, and such grant will not breach or conflict with any other agreement or instrument applicable to you or binding upon your assets or properties.
Disclaimer. EQUATOR MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM, THE LICENSED MATERIALS, OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR TRADE USAGE). ADDITIONALLY, EQUATOR MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF OUR WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND EQUATOR WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY SUCH INTERRUPTION OR ERROR.
Limitation of Liability. IN NO EVENT: (1) SHALL EQUATOR OR ITS REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT EQUATOR WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED; AND (2) SHALL EQUATOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO YOU EXCEED THE TOTAL OF THE AMOUNTS PAID TO YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Indemnification. You will indemnify, defend and hold harmless Equator, its affiliates and their respective directors, officers, employers, agents, successors and assigns from and against any and all claims, demands, or actions made by a third party (“Claims”), and all resulting liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees and costs) incurred or suffered by Equator from Claims arising from or in connection with: (i) any grossly negligent or intentional act/omission by you or your employees, agents or representatives; (ii) breach or non-fulfillment of any representation, warranty, or covenant provided by you; (iii) a Claim that our use of your Trademarks infringes on or misappropriates the intellectual property rights of a third party; (iv) violations of any applicable laws or regulations; or (v) any Claim relating to your website.
Confidentiality. “Confidential Information” means the terms of this Agreement, Equator’s business and financial information, customer and vendor lists, and sales information (including, without limitation, the Referral Fees). Confidential Information shall remain strictly confidential and shall not be utilized by you for any purpose other than to perform its obligations under this Agreement. Notwithstanding the foregoing, each Party is hereby authorized to deliver a copy of any such information (a) pursuant to a valid subpoena or order issued by a court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, employees, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process. In the event of such disclosure, the receiving Party shall give the disclosing Party prior notice before releasing any information unless giving such notice is prohibited.
Investigation. You understand that Equator may, at any time (directly or indirectly), solicit customer referrals on terms that may differ from those set forth herein or operate websites that are similar to or compete with your website. You hereby acknowledge that you have independently evaluated the desirability of participating in the Program and are not relying upon any representation, guarantee, or statement other than those set forth herein.
Miscellaneous.
Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when actually delivered; (b) by overnight courier, upon written verification of receipt; (c) upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to such addresses as either Party may provide in writing.
No Agency. You and Equator are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties. You have no authority to make or accept any offers or representations on Equator’s behalf.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Waiver. No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. A failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement does not constitute a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party regarding the Trademarks, confidentiality obligations, or the usage of the Link, and/or Licensed Materials would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any of these obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity, or otherwise in respect of this breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages do not afford an adequate remedy.
Choice of Law; Venue. This Agreement, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby exclusively and irrevocably submit to, and waive any objection against, and shall not contest, the personal jurisdiction of state and federal courts located in Marin County, California.
These Equator Coffees Affiliate Program Terms & Conditions (the “Agreement”) contain terms and conditions that apply to, and govern, your participation as an Affiliate (defined below) in Equator Coffees’ Affiliate Program (the “Program”) and the establishment of a link from your website or other digital location (also referred to as “your website”) to www.equatorcoffees.com (also referred to as “our website”). As used in this Agreement, “we” and “our” shall mean Equator Coffees, LLC and/or its parents, subsidiaries, and related entities (collectively, “Equator”), and “you” and “your” shall mean the Affiliate. Equator and Affiliate are sometimes individually referred to as a “Party” and collectively, “Parties.”
By submitting your information to participate in the Program: (i) you are confirming that you have read and understand this Agreement; (ii) you represent and warrant that you are lawfully able to, and possess the required authority to, enter into contracts on behalf of the entity applying to become an Affiliate; and (iii) you agree to be bound by, and will continue to comply with, the terms and conditions set forth herein throughout the full duration of your participation in the Program. Equator reserves the right to make changes to the Program and this Agreement, at any time, and such changes will become effective immediately upon being posted on our website. TO THE EXTENT ANY MODIFICATION IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO TERMINATE THIS AGREEMENT IN ACCORDANCE WITH ITS PROVISIONS. YOUR CONTINUED PARTICIPATION IN THE PROGRAM FOLLOWING THE POSTING OF ANY SUCH CHANGE WILL CONSTITUTE YOUR BINDING ACCEPTANCE OF THE CHANGE.
As a condition of your participation in the Program, you must comply with all applicable laws, rules, and regulations pertaining and applicable to your participation in the Program, including, without limitation, the requirement to make certain disclosures in accordance with U.S. Federal Trade Commission (“FTC”) Endorsement and Testimonial guidelines. Without limiting the foregoing, you must clearly and conspicuously disclose your affiliation with Equator as set forth in the FTC guidelines and as more fully set forth in Section 3(b) below.
MISUSING THE EQUATOR BRAND, PARTICIPATING IN PROHIBITED ACTIVITIES AND/OR FAILING TO COMPLY WITH THIS AGREEMENT MAY RESULT IN A LOSS, REDUCTION AND/OR OFFSET OF REFERRAL FEES (AS DEFINED BELOW) FROM SALES MADE THROUGH YOU THAT DO NOT COMPLY WITH THE PROGRAM TERMS OR MAY ALSO RESULT IN A TERMINATION OF YOUR PARTICIPATION IN THE PROGRAM.
Definitions.
“Affiliate” means a person or company that participates in the Program.
“Link” means any type of banner or graphical or text link provided by Equator to Affiliate to be displayed, distributed, or placed on an Affiliate’s website that can monitor clicks, sales, impressions, and other tracked activities achieved through the display, distribution, or placement of such Link.
“Qualified Customer” means a purchaser of Equator products on Equator’s website within ninety (90) days after initially visiting Equator’s website by following a Link on Affiliate’s website.
“Referral Fees” shall have the meaning set forth in Section 5.
Enrollment in the Program.
Enrollment Process. To begin the enrollment process, you must submit your information to Equator with this Agreement. Once received, Equator will evaluate your submission and will notify you of your acceptance or rejection for participation in the Program. Equator may reject your submission if Equator determines (in its sole discretion) that your website is unsuitable for the Program or for any reason. In the event that Equator does not accept your submission, for any reason, you may reapply to the Program at any time; provided, however, that you may not (i) reapply using the same domain name/URL, or (ii) apply using a domain name/URL that is different from that of the original submission and then subsequently add the rejected domain name/URL to your Affiliate account. Equator’s acceptance criteria for the Program are subject to change by Equator, in its sole discretion, at any time without prior notice. If you are accepted to participate in the Program and your website is thereafter determined (in Equator’s sole discretion) to be unsuitable based on the Program’s acceptance criteria or for any reason whatsoever, Equator may terminate this Agreement and, upon such a termination, you may no longer use the Link (as defined below) to Equator’s website.
Unsuitable Sites. Your website may be found to be unsuitable if it falls under any of the following conditions. Conditions for an unsuitable website are, but are not limited to, sites that:
Contain or promote materials that are sexually explicit, obscene, pornographic, excessively violent, defamatory, or fraudulent;
Promote violence or hate towards any persons or groups;
Promote discrimination based on race, sex, age, religion, nationality, disability or sexual orientation;
Promote illegal activities;
Promote the sale or use of tobacco products or gambling;
Violate any federal, state or local law;
Misrepresent themselves as being an Equator website by using features and or characteristics that are unique to Equator;
Otherwise violate intellectual property rights of Equator or its affiliates;
Infringe on Equator’s or any third party’s intellectual property, publicity, privacy or other rights;
Do not clearly state an online privacy policy to their visitors;
Require a user name and password to access;
Are non-US based sites or sites that primarily serve a non-US based audience;
Are unable to direct a reasonable amount of traffic by way of sales volume, clicks and page views to our website;
Excessively use pop-ups;
Require downloads and/or knowingly download software to visitors’ computers;
Are under construction;Contain any viruses, Trojan horses, worms, time bombs, cancel bots, or other computer programming routines that are intended to damage, interfere with, intercept or expropriate any system, data, or personal information;
Contain software or use technology that attempts to intercept, divert or redirect Internet traffic to or from any other website, or that potentially enables the diversion of affiliate commissions from another website; or
Are otherwise considered, in Equator’s sole judgment, offensive or otherwise inappropriate for the Program.
Unsuitable Activities. Your submission may be rejected by Equator if Equator determines, in its sole discretion, that your website contains or otherwise involves prohibited activities. You agree that, as a condition of your acceptance and participation in the Program, you will not undertake or engage in any of the following practices (and any violation of this Section shall be deemed a material breach of this Agreement and may result in immediate termination from the Program):
Use of the Equator name or any variation thereof in any manner not expressly authorized by this Agreement;
Use or incorporation of the word “Equator” or variations or misspellings thereof in the domain name(s) of your website(s), or in hidden text or source code;
Bidding on Equator brand keywords, variations or misspellings, or keyword strings (e.g., “equator,” “equatorcoffees.com,” “equator coffee store,” etc.) in search engines or content networks;
Use of Equator brand keywords, keyword strings, or variations or misspellings thereof, in the headline, display URL, or description of pay-per-click ads or ads or content network ads;
Use of your Link as the destination URL in any paid advertisement (a practice known as direct-linking);
Engineering your website in such a manner that pulls or redirects Internet traffic for Equator brand keywords away from www.equatorcoffees.com via natural search optimization. Prohibited engineering techniques include, but are not limited to:
Using Equator or Equator brand keywords in the title tag, domain name, meta tags, or other on-page factors that influence (directly or indirectly) rankings;
Engaging in cookie stuffing, forced clicks, or the use of pop-ups or pop-unders or false or misleading links on your website.
Attempting to modify or alter our website in any way; or
Making any representation or warranty, express or implied, or creating an appearance that a visitor to your website is visiting our website (e.g., “framing” www.equatorcoffees.com) without our prior written consent.
Links and Disclosures.
Using the Link. If you are accepted into the Program, we will make the Link available to you, subject to the terms and conditions of this Agreement, which you may display as often and in as many areas on your website as you desire. The Link contains site-specific tracking information that identifies your website as a member of the Program and will establish a link from your website to our website. Only a valid Link obtained from Equator will be tracked for purposes of determining Referral Fees that you may be eligible to receive for sales of Equator products generated through your website. You may only use the Link for your website and you are prohibited from distributing the Link to third parties, unless agreed to in writing by Equator. Equator may modify the Link at any time, in its sole discretion, and your use of the Link must be in compliance with this Agreement at all times. Any statements, information, or materials with respect to Equator that will be displayed on your website must be approved by Equator in advance.
FTC Disclosures. In compliance with certain FTC rules and regulations, you must clearly and conspicuously identify yourself as an Affiliate on all pages, social media platforms, and content where a Link is placed. You shall also include a clear and conspicuous disclosure within any and all pages, blog posts, social media posts, or any other content that provide an assessment or endorsement of Equator products and where a reader and/or consumer might not understand that the Link is a paid advertisement. You agree that, if we reasonably believe that any messaging you provide regarding the Link and Program is in violation of the rules and regulations promulgated by the FTC, we may, in our sole discretion, withhold Referral Fees or suspend and/or terminate your participation in the Program. For more information regarding the FTC’s various guidelines, please visit: https://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf (Dot Com Disclosures Guidelines) and https://business.ftc.gov/advertising-and-marketing/endorsements (Endorsement Guidelines). It is your responsibility to be in compliance with such rules and regulations and you are hereby advised to seek and obtain legal advice regarding their applicability to you, your website, and your promotional activities.
Order Processing. Equator will process orders placed by Qualified Customers who follow a Link from your website to our website in accordance with applicable legal requirements. We will be responsible for all order processing and fulfillment. We reserve the right to reject or cancel, in our sole discretion, an order that does not comply with certain requirements that we periodically establish from time to time or for any reason at all. We will track sales to Qualified Customers who purchase Equator products from our website by following a Link from your website. To ensure accurate tracking, reporting, and accrual of Referral Fees, you must ensure that the Link between your website and our website is properly formatted. Equator will not be responsible, or liable to you, for an improperly formatted Link irrespective of whether you have made amendments to the underlying source code or not. Equator cannot track or provide credit for sales from Qualified Customers that do not have browsers with their cookies settings enabled, and you will not be entitled to claim Referral Fees under such circumstances.
Referral Fees. Fees due to you for a purchase of Equator products by a Qualified Customer will be calculated and paid pursuant to the terms and conditions set forth in this Section (“Referral Fees”).
Purchases by Qualified Customers. Referral Fees will be calculated based on the rate set forth below for each purchase of Equator products by a Qualified Customer. A purchase by a Qualified Customer does not include:
a purchase by a Qualified Customer who is also associated with any other Equator reseller, referral, or other program;
a purchase by a Qualified Customer who is not current on its payment obligations to Equator or Affiliate;
a purchase by a Qualified Customer prior to the Affiliate joining the Program or was not properly tracked through a Link;
a purchase that Equator suspects, in its sole discretion, is the result of fraud, which includes but is not limited to, purchases that are made through the use of software that generates real or fictitious information or multiple accounts from the same customer;
a purchase by a Qualified Customer that has an excessive cancellation rate, as determined by Equator in its sole discretion;
a purchase by a Qualified Customer that is in violation of any policies or documentation relating to the Program; or
a purchase by a Qualified Customer who was offered or received a coupon, refund, credit, or discount from an Affiliate.
Withholding of Referral Fees. Equator reserves the right to: (1) withhold payment of Referral Fees to the extent Equator believes, in its sole discretion, that such Fees are potentially the result of fraud by a Qualified Customer or by you; (2) suspend payment of Referral Fees to the extent Equator believes, in its sole discretion, that the Qualified Customer or you have engaged in improper activity or a potential breach of this Agreement; (3) deduct from your Referral Fees any and all fees allegedly due to you as a result of any fraudulent, questionable, or cancelled purchase by a Qualified Customer; (4) withhold or decline Referral Fees to the extent that Equator, in its sole discretion, determines a Qualified Customer or you have an excessive cancellation rate; or (5) deduct from your Referral Fees any amount resulting from the use of promotional codes that are not specifically communicated to you by or on behalf of Equator (for example, codes from other Equator promotional emails or other partner or non-partner communications). You are responsible for monitoring, tracking, and following up on the payment, denial, and withholding of Referral Fees and Equator is under no obligation to notify you of the status of your Referral Fees. Any changes to decisions relating to the cancellation or withholding of Referral Fees are made in Equator’s sole discretion.
Amount of Referral Fees. During the Term (as defined below), You will be entitled to Referral Fees of 10% percent of the Net Revenue (as defined below) received by you for a purchase of Equator products by a Qualified Customer. In order for a purchase of Equator products to generate Referral Fees: (a) the Qualified Customer must use a browser that has its cookies settings enabled and must follow your Link to purchase Equator products from our website; (b) the purchase must be made in accordance with this Agreement and you must not be in breach of this Agreement; and (c) the Qualified Customer must not have purchased such products by following a Link from another Affiliate’s website within ninety (90) days of the Qualified Customer’s initial visit to our website. We will pay Referral Fees if the Qualified Customer makes a purchase of Equator products after re-entering our website within ninety (90) days after the date of initial visit by such Qualified Customer, unless the Qualified Customer enters our website through another Affiliate’s Link or from another marketing link (e.g., paid search, social media, email correspondence, or other marketing channels). For purposes of this Section, “Net Revenue” means the revenue actually received by us from the sale of Equator products to a Qualified Customer, excluding sales taxes, value added tax, packaging, shipping, insurance, refunds, and payments not honored by a financial institution.
Processing of Referral Fees. Subject to Section 5(c), Referral Fees will be processed within sixty (60) days after the end of the calendar month in which the purchase by the Qualified Customer was made, provided that Equator may hold Referral Fees until they have accrued to $100. You are responsible for (1) notifying us of any changes to your address or payment information; (2) informing us of which of the available payment methods offered by Equator you prefer and any updates thereto; and (3) providing accurate tax and payment information required to process payment of Referral Fees. Equator, in its sole discretion, reserves the right to modify the list of available payment methods or the payment schedule at any time. You agree to file any dispute relating to Referral Fees within thirty (30) days from the date the payment would have been made by contacting Equator and requesting that the Referral Fees be paid; otherwise our payment of the Referral Fees will be deemed to be accepted by you in satisfaction of all purchases by Qualified Customers that would otherwise generate Referral Fees in the immediately preceding month if no such request is received by Equator within such thirty (30) day period and you will forever forfeit any rights you might have to a potential payment dispute claim. You are required to submit a W8/W9 tax form before any Referral Fees accrue and, if Equator does not receive the necessary tax or payment information within thirty (30) days of a purchase by a Qualified Customer that would otherwise generate Referral Fees, you will not be entitled to Referral Fees and no such Referral Fees will be owed with respect to such purchase. You are responsible for payment of all taxes relating to the Referral Fees you receive from us under this Agreement and we will issue a Form 1099 to those Affiliates whose earnings meet or exceed the applicable threshold amount.
Qualified Customer Policies and Pricing. Qualified Customers who purchase Equator products through the Program will be deemed to be customers of Equator, without affecting their status as your customer. All of our rules, policies, and operating procedures concerning customer orders, customer service, and sales will apply to Qualified Customers when using our website. We may change our policies and operating procedures at any time in our sole discretion. Equator will determine the prices to be charged for products sold under the Program and in accordance with our own pricing policies. Product prices and availability might vary from time to time. Due to occasional changes in price, you may not include price information in your product descriptions on your website. Equator will use commercially reasonable efforts to present accurate information, but we cannot guarantee the availability or price of any specific product or the error-free/uninterrupted operation of our website.
Term and Termination.
Term. The term of this Agreement will begin when you submit your information and this Agreement to us and will end on the earlier of: (x) Equator’s rejection of your submission to be an Affiliate in accordance with Section 2 and (y) when terminated by either Party in accordance with this Section 7 (the “Term”). Either Party may terminate this Agreement at any time, with or without cause, by providing thirty (30) days prior notice to the other Party. Equator may suspend or terminate this Agreement (at its option) immediately if you breach any term or condition of this Agreement or if Equator determines, in its sole discretion, that purchases of Equator products were obtained fraudulently or through misrepresentation (in which case, Equator may withhold payment of associated Referral Fees pending the outcome of an investigation of the suspected fraud or misrepresentation).
Effect of Termination. Termination of this Agreement shall also terminate any outstanding, unfulfilled orders of Equator products by a Qualified Customer. All rights to payment, causes of action, and any provision that, by their terms, are intended to survive termination, shall survive termination of this Agreement. Upon termination of this Agreement, you shall immediately cease use of, and remove from your website, the Link and all Equator-related content, including the Licensed Materials (as defined below). You agree to return to Equator any and all documentation or other media embodying Equator’s image, Trademarks (as defined below) or other intellectual property. You further agree that you will not: (1) use the Equator name, or any variation thereof, in any manner not expressly authorized by Equator in writing; (2) create, publish, distribute, or share any materials (whether written or verbal) that make reference to Equator without first obtaining our prior written consent, which may be withheld in our sole discretion; or (3) disparage Equator or any of its officers, directors or employees or otherwise take any action that could reasonably be expected to adversely affect Equator’s reputation. For purposes of this Agreement, “disparage” shall mean any negative statement, whether written or oral, about Equator or any its officers, directors or employees or Equator products.
Intellectual Property.
Trademark License to Affiliate. Subject to the terms and conditions of this Agreement and during the Term of this Agreement, Equator hereby grants to you a revocable, non-exclusive, non-transferable, and non-sublicenseable (through multiple tiers) license to (1) use the Link made available to you on your website in accordance with the terms of this Agreement and (2) use our Trademarks (as defined below) (collectively, “Licensed Materials”) solely in connection with the Link, in each case, for the sole purpose of generating the sale of Equator products. You agree that each Equator Trademark must appear by itself and must be surrounded by sufficient empty space such that its placement would avoid unintended associations with any other material (including, without limitation, type, photography, borders, and edges). For purposes of this Agreement, “Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.
Trademark License to Equator. You hereby grant us a non-exclusive license to use your Trademarks in a list of Affiliates and in any advertising or other marketing materials used to promote Equator, Equator products, or the Program. This license shall terminate upon the termination of your participation in the Program, unless agreed to by the Parties otherwise.
Usage of Licensed Materials. You shall not use the Licensed Materials for any purpose, including, without limitation, in a direct mail or email, other than to generate the sale of Equator products from your website without first submitting a sample of such use to us and obtaining our prior written consent, which may be withheld in our sole discretion. You may only use Licensed Materials in emails, newsletters, or other marketing materials that are approved by us in advance and that comply with all applicable laws, including, without limitation, the CAN-SPAM Act. You shall not display the Licensed Materials in any manner which implies Equator’s sponsorship or endorsement of your products or services. Equator reserves all rights in and to the Licensed Materials and your license to the same is limited to the terms and conditions set forth herein. We reserve the right, in our sole discretion, to revoke your license to the Licensed Materials at any time.
Warranties; Limitations of Liability; Indemnification.
Representations and Warranties. You hereby represent and warrant that:
you have reviewed and understand this Agreement and agree to be bound by its terms;
this Agreement constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms, and you agree not to contest the validity or enforceability of this Agreement;
any material displayed on your website will not include content that renders the website to be an unsuitable site under the terms of Section 2(b); and
you are the sole and exclusive owner of your Trademarks and you have the power to grant Equator the license to such Trademarks as set forth herein, and such grant will not breach or conflict with any other agreement or instrument applicable to you or binding upon your assets or properties.
Disclaimer. EQUATOR MAKES NO EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PROGRAM, THE LICENSED MATERIALS, OR ANY PRODUCTS SOLD THROUGH THE PROGRAM (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, OR ANY IMPLIED WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE, DEALING OR TRADE USAGE). ADDITIONALLY, EQUATOR MAKES NO REPRESENTATION OR WARRANTY THAT THE OPERATION OF OUR WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, AND EQUATOR WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY SUCH INTERRUPTION OR ERROR.
Limitation of Liability. IN NO EVENT: (1) SHALL EQUATOR OR ITS REPRESENTATIVES BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (A) WHETHER THE DAMAGES WERE FORESEEABLE; (B) WHETHER OR NOT EQUATOR WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED; AND (2) SHALL EQUATOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, TO YOU EXCEED THE TOTAL OF THE AMOUNTS PAID TO YOU UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF YOUR REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
Indemnification. You will indemnify, defend and hold harmless Equator, its affiliates and their respective directors, officers, employers, agents, successors and assigns from and against any and all claims, demands, or actions made by a third party (“Claims”), and all resulting liabilities, settlements, costs, damages and fees (including reasonable attorneys’ fees and costs) incurred or suffered by Equator from Claims arising from or in connection with: (i) any grossly negligent or intentional act/omission by you or your employees, agents or representatives; (ii) breach or non-fulfillment of any representation, warranty, or covenant provided by you; (iii) a Claim that our use of your Trademarks infringes on or misappropriates the intellectual property rights of a third party; (iv) violations of any applicable laws or regulations; or (v) any Claim relating to your website.
Confidentiality. “Confidential Information” means the terms of this Agreement, Equator’s business and financial information, customer and vendor lists, and sales information (including, without limitation, the Referral Fees). Confidential Information shall remain strictly confidential and shall not be utilized by you for any purpose other than to perform its obligations under this Agreement. Notwithstanding the foregoing, each Party is hereby authorized to deliver a copy of any such information (a) pursuant to a valid subpoena or order issued by a court or administrative agency of competent jurisdiction, (b) to its accountants, attorneys, employees, or other agents on a confidential basis, and (c) otherwise as required by applicable law, rule, regulation, or legal process. In the event of such disclosure, the receiving Party shall give the disclosing Party prior notice before releasing any information unless giving such notice is prohibited.
Investigation. You understand that Equator may, at any time (directly or indirectly), solicit customer referrals on terms that may differ from those set forth herein or operate websites that are similar to or compete with your website. You hereby acknowledge that you have independently evaluated the desirability of participating in the Program and are not relying upon any representation, guarantee, or statement other than those set forth herein.
Miscellaneous.
Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when actually delivered; (b) by overnight courier, upon written verification of receipt; (c) upon acknowledgment of receipt of electronic transmission; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to such addresses as either Party may provide in writing.
No Agency. You and Equator are independent contractors and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the Parties. You have no authority to make or accept any offers or representations on Equator’s behalf.
Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Waiver. No waiver under this Agreement is effective unless it is in writing and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. A failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement does not constitute a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement.
Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party regarding the Trademarks, confidentiality obligations, or the usage of the Link, and/or Licensed Materials would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any of these obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity, or otherwise in respect of this breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages do not afford an adequate remedy.
Choice of Law; Venue. This Agreement, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of the State of California, without regard to the conflict of laws provisions. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties hereby exclusively and irrevocably submit to, and waive any objection against, and shall not contest, the personal jurisdiction of state and federal courts located in Marin County, California.