Follow Suit Swimwear
Program Terms
AFFILIATE MARKETING AGREEMENT
This Affiliate Marketing Agreement (this “Agreement”) is provided by Sunchzr, LLC, d/b/a FollowSuit (the “Company,” “we,” “our,” or “us”). This Agreement is a legal contract between you and the Company that describes the terms of the affiliate marketing relationship established hereby.
The Company designs and sells premium swimwear and related apparel and accessories (the “Products”) primarily through its website located at shopfollowsuit.com (the “Website”). The Company has established an affiliate marketing program (the “Program”) on the terms and conditions set forth in this Agreement, pursuant to which you will serve as an affiliate marketer (an “Affiliate”) of the Company and market and promote sales of the Products on the Website.
1. Acceptance. By clicking to accept this Agreement, submitting an application to participate in our Program, or executing a copy of this Agreement, you represent that you have read and reviewed this Agreement and that you agree to be bound by it. If you do not agree to be bound by this Agreement, you may not serve as an Affiliate to the Company or participate in our Program. This Agreement specifically incorporates by reference any terms of use, privacy policies, end-user license agreements, or other legal documents and terms that we make available from time to time on our Website.
2. Program Participation.
a. The Company reserves the right to accept or reject, in its sole discretion, any request for an Affiliate to participate in the Program. The Company may request from time to time additional information from an Affiliate in order to verify such Affiliate’s eligibility to participate in the Program.
b. This Agreement does not create an exclusive relationship between you and us. This Agreement does not restrict our ability to work with any individual or company we may choose or who we choose to admit to the Program.
c. We will notify you upon acceptance into the Program. Upon acceptance, you will be solely responsible for ensuring that your account is established through the ShareASale service (the “Affiliate Tool”) in order to participate in the Program, including receiving payments in connection with the Program (such as a bank or online payment account that we may use to make payments hereunder).
3. Affiliate Program.
a. We will provide you with specific and unique tracking links that you may place on your website or other internet channels (the “Affiliate Site”) in order to promote our Products (a “Link”). The Link will be keyed to your identity and will send online customers to the Company’s website or websites. You hereby agree to fully cooperate with us regarding the Link and that you will explicitly comply with all of the terms of this Agreement for the promotion of the Link at all times. We may modify the specific link or links and will notify you if we do so. You agree to only use Links that are made available by us or otherwise previously approved by us and to display the Link prominently on your website or social media page.
b. By clicking on a Link posted on the Affiliate Site, a customer will be taken to our Website (an “Affiliate Lead”). Each Affiliate Lead will expire fifteen (15) days from the date the Affiliate Lead clicked on the Link made available by you. We will pay you a commission (a “Commission”) as further described herein for each new Affiliate Lead who purchased a Product after clicking on a Link made available by you (a “Customer Transaction”), provided that you remain eligible to receive a Commission pursuant to the terms of this Agreement. You will receive a Commission payment for that Customer Transaction only, regardless of any additional purchases made by that Affiliate Lead after the initial Customer Transaction. For example, if the initial Customer Transaction is for one Product, and there is a subsequent transaction by that same Affiliate Lead for an additional Product, Affiliate will receive Commission for the initial purchase. The Affiliate will not be entitled to receive Commission on any additional purchases of Products by that same Affiliate Lead.
c. To be eligible for Commission (i) you must be accepted and in good standing in the Program in accordance with Section 2 hereof, (ii) a Customer Transaction must have occurred, and (iii) a Customer must not return the Product during the 30-day period after the Customer Transaction. You are not eligible to receive a Commission or any other compensation if: (1) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (2) the Affiliate Lead has paid or will pay such commissions, referral fees, or other compensation directly to you, (3) the Commission payment has been obtained by fraudulent means, misuse of the Link, misuse of the Affiliate Tool, breach of any of our terms and conditions or by any other means that the Company deems to breach the spirit of the Program, (4) the Affiliate Lead participates in any of the Company’s partner programs and is eligible to receive commission in relation to the Customer Transaction, (5) the Affiliate Lead was referred by any other partner or affiliate links of the Company (i.e., Commissions are only available through your specific Link), (6) the purchase was not made by an already-existing partner or affiliate of the Company, and (7) the purchase may not have been induced by you offering the Affiliate Lead any coupons or discounts. In competitive situations with other affiliates, the Company may elect to provide the Commission to the affiliate that the Company deems to be the most eligible for the Commission, at Company’s discretion. The Company may discontinue Commission payments should any of the eligibility criteria set forth herein fail to be met at any time. If the Company pays any Commission to you for which it is later determined you were not eligible to receive, the Company may offset and reduce any future Commission payments against such ineligible amount.
d. You will only be eligible for a Commission payment for any Customer Transactions that derived from Affiliate Leads generated by the Link that the Company makes available to you and are accepted by the Company. An Affiliate Lead will be considered valid and accepted if, in Company’s reasonable determination: (i) it is a new potential customer of the Company, and (ii) is not, at the time of submission or sixty (60) days prior, one of the Company’s pre-existing customers, or involved in the Company’s active sales process. Note that cookies used as part of the Program have a fifteen (15) day duration. If a potential customer clears their cookies during this period, the company shall not be liable for any Commissions that may have been owed to you.
e. Notwithstanding the foregoing, the Company may choose not to accept an Affiliate Lead or Customer Transaction in its reasonable discretion. If an Affiliate Lead does not purchase the Product within fifteen (15) days of their first click on the Link, you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired. An Affiliate Lead is not considered valid if its first click on the Link is after this Agreement has expired or terminated. Once Company receives the Affiliate Lead information, the Company may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid then the Company may choose to maintain it in the Company’s database and may choose to engage with such Affiliate Lead. Any engagement between the Company and an Affiliate Lead will be at Company’s discretion.
4. Additional Terms and Conditions.
a. You acknowledge and agree that as of the date you accept this Agreement, understand and approve of the Products and shall recommend the use of the Products to the Affiliate Leads unless and until this Agreement is terminated in accordance with the terms hereof.
b. You agree to comply with all applicable laws in the performance of your obligations and responsibilities hereunder. You must comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests. For the duration of this Agreement, you shall establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.
c. During the term of this Agreement, in the event that the Company make its trademark, logo or name (the “Company’s Marks”) available to you within the Affiliate Tool, you may use the trademark as long as you follows all quality and other the usage requirements communicated by the Company to you from time to time. Subject to the compliance with the terms of this Agreement, we hereby grant you a non-exclusive, non-transferable, revocable, limited license to access our use the Company’s Marks solely and exclusively in conjunction with identifying our Company and brand on the Affiliate Site to send customers to the Links we provide. Affiliate must: (i) only use the images of the Company’s Marks that Company expressly makes available to you, without altering the Company’s Mark’s in any way; (ii) only use the Company’s Marks in connection with the Programand this Agreement; and (iii) immediately comply if the Company requests that you discontinue use of the Company’s Marks. You must not: (1) use the Company’s Marks in a misleading or disparaging way; (2) use the Company’s Marks in a way that implies the Company endorses, sponsors or approves of your services or products; or (3) use the Company’s Marks in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
d. You must be at least 18 (eighteen) years of age to participate in our Program or use the Affiliate Tool. By requesting to participate in or submitting an application to join our Program, you represent and warrant that you are at least 18 years of age and may legally agree to this Agreement. The Company assumes no responsibility or liability for any misrepresentation of your age.
e. In addition to the other covenants and agreements in this Agreement, the Affiliate agrees not to use the Program: (i) for any unlawful purpose or any purpose prohibited under this Agreement; (ii) in any way that could damage our websites, products, services, brand reputation, or the general business of the Company; (iii) to harass, abuse, or threaten others or otherwise violate any person's legal rights; (iv) to violate any intellectual property rights of the Company or any third party; (v) to upload or otherwise disseminate any computer viruses or other software that may damage the property of another; (vi) to perpetrate any fraud; (vii) to engage in or create any unlawful gambling, sweepstakes, or pyramid scheme; (viii) to publish or distribute any obscene or defamatory material; (ix) to publish or distribute any material that incites violence, hate, or discrimination towards any group; or (x) to unlawfully gather information about others.
5. Commissions and Payment Terms.
a. The Company will pay you a Commission equal to ten percent (10%) of net sales for each eligible Customer Transaction. For purposes of Commissions hereunder, net sales shall be determined after taking into account shipping and handling charges, taxes, and any discounts or rebates applicable to the Customer Transaction.
b. The Company will pay the Commission amount due to you for an applicable month within forty-five (45) days after the end of each calendar month for any Commission amounts that you becomes eligible for in accordance with this Agreement. The Company will determine the currency in which it pays the Commission, as well as the applicable conversion rate. The Company will not pay more than one Commission payment or other similar referral fee on any given Customer Transaction (unless Company chooses to in its discretion). You are responsible for payment of all taxes applicable to Commissions received by you. All amounts payable by the Company to you are subject to offset by Company against any amounts owed by you to Company.
c. We will determine whether payout is permissible in our sole and exclusive discretion. We reserve the right to reject clicks and/or sales that do not comply with the terms of this Agreement.
d. Processing and fulfillment of orders will be our sole responsibility.
e. In order to receive Commissions hereunder, the Company may request additional information from you from time to time, such as address information, as well as accounting and tax documentation, such as a W-8 or W-9 tax form. Accounting information may include the routing and account number of a bank where you wish to post a direct deposit or may include an email address for an online method of payment.
f. For any disputes as to Commissions, the Company must be notified within thirty (30) days of your receipt of a Commission. We will review each dispute notification as well as the underlying payout transaction to which it is related. Disputes filed after thirty (30) days of receipt of a Commission will not be eligible for review.
6. Reports. You may log into the Affiliate Tool to review reports related to your participation in the Program, including information relating to Affiliate Leads, Customer Transactions and Commissions. Such reports are made available by a third party that provides the Affiliate Tool and for which the Company assumes to responsibility. The Provider of the Affiliate Tool may update or change the features or functionality of the Affiliate Tool without our consent or approval. We will not be responsible for any changes or updates made to the Affiliate Tool. In addition, any reports or information made available through the Affiliate Tool have not been verified for accuracy by the Company, and as such, we hereby disclaim and make no representations or warranties regarding the accuracy or validity of any such reports and information.
7. Representations and Warranties.
a. You hereby represent and warrant that (i) if you are a corporation, limited liability or other entity represents and warrants that you are duly organized, validly existing and in good standing under the laws of the state of its incorporation, and has all of the requisite power and authority under the laws of such state to conduct your business as now being conducted and to perform your obligations as contemplated by this Agreement, or if you are an individual, that you have the capacity and power to enter into and perform your obligations under this Agreement; and (ii) this Agreement has been duly authorized, executed and delivered by you, and constitutes a legal, valid and binding obligation, enforceable against you in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties.
b. You further represents, warrants and covenants that your sales and marketing practices shall be performed in accordance with generally accepted industry standards. You shall not make any representations or warranties regarding the Products on behalf of the Company, without the Company’s prior written consent. You agree to market and promote the Products in such manner as may be communicated by the Company and consistent with any quality control guidelines made available by the Company from time to time.
c. THE COMPANY AND ITS AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY OR TIMELINESS OF THE PRODUCT FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE PRODUCTS INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
8. Indemnification; Limitations of Liability.
a. You shall indemnify and hold harmless the Company and each person who controls such other party, and each of their respective principals, shareholders, members, managers, directors, officers, agents, employees, and representatives hereof (each, an “Indemnified Party”), from and against all losses, expenses, claims, damages and liabilities (including reasonable costs of investigation and legal expenses) incurred by them which result from, arise out of, or are based upon: (i) any breach by you of this Agreement; (ii) any violation by you of any applicable law; or (iii) your negligence or willful misconduct. The obligations set forth in this section shall survive termination of this Agreement.
b. EXCEPT WITH RESPECT TO SECTION 8.A OR FOR ANY BREACHES OF YOUR CONFIDENTIALITY OBLIGATIONS OR WITH RESPECT TO THE COMPANY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD-PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT, OR IN FURTHERANCE OF THE PROVISIONS AND OBJECTIVES OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO (i) LOST PROFITS, (ii) LOSS OF USE OR INTERRUPTION OF BUSINESS DAMAGES, (iii) LOST OR INACCURATE DATA, (iv) COST OF COVER, (v) PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY OR SERVICES, OR (vi) OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF A PARTY’S PRODUCTS.) ALL OF THE ABOVE LISTED LIMITATIONS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREUNDER SHALL FAIL OF ITS ESSENTIAL PURPOSE. FURTHER,
c. IN NO EVENT SHALL THE COMPANY'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, EXCEED $1,000.
9. Term; Termination and Suspension.
a. The term of this Agreement will commence when we accept you into the Program. Thereafter, this Agreement shall continue until terminated in accordance with this Section 9. This Agreement may be terminated by either party, with or without cause, on fifteen (15) days advance written notice to the other party. Upon termination of this Agreement, each party shall immediately cease using any materials contemplated by this Agreement upon such termination and take such other appropriate steps, including, without limitation, removing references from the other party on its own website and disabling any hyperlinks to the other party’s website.
b. Upon termination, you will be eligible to receive Commissions earned prior to the date of termination.
c. If you fail to follow the terms of this Agreement or any other legal terms we have posted anywhere on our website or websites, you forfeit all rights, including the right to any unclaimed Commissions. We specifically reserve the right to immediately terminate this Agreement if you violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material.
d. At the termination of this Agreement, any provisions that would be expected to survive termination by their nature, including the indemnification, limitations of liability, confidentiality, and intellectual property, shall remain in full force and effect.
10. Intellectual Property.
a. You acknowledge and agree that the Company shall maintain exclusive right, title, interest and ownership to its Intellectual Property (as defined below) and you shall not obtain any right, title, interest and ownership in Company’s Products or its Intellectual Property except as specifically set forth herein. “Intellectual Property” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
b. Except as expressly provided herein or otherwise consented to by us, you are not permitted to use any of the Company’s Intellectual Property or any confusingly similar variation of the Company’s Intellectual Property without our express prior written permission. This includes a restriction on using the Company’s Intellectual Property in any domain or website name, in any keywords or advertising, in any metatags or code, or in any way that is likely to cause consumer confusion.
c. Any unauthorized use of Company Intellectual Property will constitute unlawful infringement and we reserve all of our rights, including the right to pursue an infringement suit against you in federal court.
11. Confidentiality.
a. The Company may disclose Confidential Information (as defined below) to the Affiliate, which is kept and protected as confidential and which is essential for carrying out the Company’s business in a highly competitive market. Confidential Information may be used by Affiliate only in connection with the performance of its obligations hereunder and shall be maintained in strict compliance with the terms of this Section 11.
b. For the purpose of this Agreement, the term “Confidential Information” shall mean any and all trade secrets, confidential knowledge, regulatory strategy and status, know-how, product information, customer information, technical data or other proprietary information or materials of Company. By way of illustration but not limitation, Confidential Information includes: (i) inventions, ideas, samples, processes, formulas, data, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding plans for research, development, regulatory status, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; (iii) information regarding the skills and compensation of employees or consultants of the party; and (iv) names, identities, location and business operations or prospective and current customer of Company. In addition, Confidential Information shall include any information relating to the Company that derives independent economic value, actual or potential, from not being generally known or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use and is the subject of reasonable efforts under the circumstances, to maintain its secrecy.
c. Confidential Information shall not include: information that is or becomes publicly available by means other than an unauthorized disclosure by Affiliate; information that is independently developed by Affiliate or its authorized agents; information that is approved for release pursuant to written authorization of the Company and information that is required to be disclosed in connection with a request pursuant to legal process, in which case the Affiliate shall provide prompt written notification to the Company of such obligation to the extent permitted by law. If Affiliate believes that any of the above exceptions apply to Confidential Information, the Affiliate shall provide prompt written notice to the Company of its intent to disclose the information to a third party.
d. The Affiliate agrees now and at all times in the future that all Confidential Information shall be held in strict confidence. The Affiliate shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used or obtained by any person or entity except in accordance with the terms of this Agreement. The Affiliate agrees not to disclose such information except where a party may be exposed to civil or criminal proceedings for failure to comply, when subject to divulge such information by duly constituted authorities or court process, when subject to governmental or regulatory audit or investigation, or except to the extent that disclosure is required to satisfy the intent of this Agreement and provided that such third party agrees in writing to maintain the confidentiality of the Confidential Information. Without in any way limiting the foregoing, all independent contractors, employees, units, divisions, segments, or affiliates of the Affiliate who may have access to Confidential Information shall be informed with regard to a party’s obligations under this Agreement and shall not, under any circumstances use the Confidential Information in a manner which would compete with the business of the Company.
e. The Affiliate acknowledges that the unauthorized use, disclosure, or duplication of any Confidential Information is likely to cause irreparable injury to the Company or to the Company’s customers for which it will have no adequate remedy at law. Accordingly, the Affiliate hereby consents to the entry of injunctive relief against it to prevent or remedy any breach of the confidentiality obligation described herein without the other party being required to post bond. Further, the Affiliate agrees that any violation of this section shall be a material breach of any and all agreements with the Company, whether now existing or entered into in the future, and shall entitle the Company to immediately terminate any agreements without penalty upon notice to the Affiliate.
f. The Affiliate further agrees that the Affiliate shall not make any public remarks about the Company or its affiliates regarding the matters addressed in this Agreement, the business practices of the Company or any other remarks that disparage the conduct of the Company to any third party in the course of the parties’ relationship.
g. The Affiliate shall establish and maintain policies and procedures to ensure compliance with this section. The terms of this section shall apply to all Confidential Information so long as the Affiliate has possession of such Confidential Information, including after termination of any contractual or other relationship between the parties. In the event that a party brings an action in a court of competent jurisdiction to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses incurred in enforcing its rights hereunder.
h. Upon termination of this Agreement, the Affiliate shall promptly destroy or return all Confidential Information received by the Company, including all copies thereof. Notwithstanding any destruction or return of Confidential Information pursuant to this section, the Affiliate shall continue to be bound by the obligations of confidentiality in this Agreement in accordance with its terms.
12. Modifications. The Company may, from time to time and at any time, modify this Agreement. You agree that the Company has the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Website and that modifications or variations will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement. If we update or replace the terms of this Agreement, we will use commercially reasonable efforts to inform you of such changes, including by email. If you do not agree to the modification, update or replacement, you should immediately cease participating in the Program and this Agreement may be terminated in accordance with Section 9 hereof. Your continued participation in the Program or use of Links following any such modification, update or replacement shall be conclusively deemed as your acceptance and agreement to such modified, updated, or replacements terms.
13. Monitoring.
a. You are solely responsible for ensuring operation and maintenance of the Affiliate Site, including technical operations, written claims, links, and accuracy of materials. You must ensure, as noted above, that the Affiliate Site does not infringe upon the intellectual property rights of any third party or otherwise violate any legal rights.
b. We may monitor your account, as well as clicks or Customer Transactions originated from the Affiliate Site. If we determine you are not in compliance with any of the terms of this Agreement, we have the right to immediately terminate your participation in the Program in addition to any other remedies available hereunder or in law or equity.
14. Miscellaneous.
a. This Agreement contains the entire understanding and the full and complete agreement of the parties and supersedes and replaces any prior understandings and agreements among the parties with respect to the subject matter hereof.
b. If any provision of this Agreement is held invalid or unenforceable, such invalidity shall not affect the enforceability of any other provision of this Agreement, all of which shall remain valid and enforceable.
c. Nothing contained within this Agreement shall be construed to form any partnership, joint venture, agency, franchise, or employment relationship. You are an independent contractor of the Company and will remain so at all times.
d. The waiver by either party of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party and shall not operate to be construed as a waiver of any breach of any other provision of this Agreement.
e. The laws of the State of New York, without regard to conflict of law provisions, shall govern this Agreement and any dispute arising hereunder. In case of any dispute arising under this Agreement, the parties agree that such dispute shall be resolved by litigation occurring in the state or federal courts located in the City of New York, New York. The parties acknowledge and agree to the personal jurisdiction of such state and federal courts. The parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non-conveniens or similar doctrine. IN ADDITION, THE PARTIES HEREBY WAIVE THE RIGHT TO BRING ANY CLASS ACTION LITIGATION IN CONNECTION WITH THIS AGREEMENT AND ANY RIGHT TO TRIAL BY JURY.
f. This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by you. If this Agreement, or the rights granted hereunder, are assigned, sold, leased or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignees, administrators, successors, and executors.
g. Headings of parts and subparts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.
h. The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, disease, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
i. Nothing in this Agreement shall be considered as conferring any right or benefit on a person not a party to this Agreement nor imposing any obligations on either party hereto to persons not a party to this Agreement.
j. Electronic communications are permitted to both parties under this Agreement, including email or fax. For any questions or concerns, please email us at the following address: affiliates@shopfollowsuit.com.
k. On a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
Last updated: March 8, 2021
This Affiliate Marketing Agreement (this “Agreement”) is provided by Sunchzr, LLC, d/b/a FollowSuit (the “Company,” “we,” “our,” or “us”). This Agreement is a legal contract between you and the Company that describes the terms of the affiliate marketing relationship established hereby.
The Company designs and sells premium swimwear and related apparel and accessories (the “Products”) primarily through its website located at shopfollowsuit.com (the “Website”). The Company has established an affiliate marketing program (the “Program”) on the terms and conditions set forth in this Agreement, pursuant to which you will serve as an affiliate marketer (an “Affiliate”) of the Company and market and promote sales of the Products on the Website.
1. Acceptance. By clicking to accept this Agreement, submitting an application to participate in our Program, or executing a copy of this Agreement, you represent that you have read and reviewed this Agreement and that you agree to be bound by it. If you do not agree to be bound by this Agreement, you may not serve as an Affiliate to the Company or participate in our Program. This Agreement specifically incorporates by reference any terms of use, privacy policies, end-user license agreements, or other legal documents and terms that we make available from time to time on our Website.
2. Program Participation.
a. The Company reserves the right to accept or reject, in its sole discretion, any request for an Affiliate to participate in the Program. The Company may request from time to time additional information from an Affiliate in order to verify such Affiliate’s eligibility to participate in the Program.
b. This Agreement does not create an exclusive relationship between you and us. This Agreement does not restrict our ability to work with any individual or company we may choose or who we choose to admit to the Program.
c. We will notify you upon acceptance into the Program. Upon acceptance, you will be solely responsible for ensuring that your account is established through the ShareASale service (the “Affiliate Tool”) in order to participate in the Program, including receiving payments in connection with the Program (such as a bank or online payment account that we may use to make payments hereunder).
3. Affiliate Program.
a. We will provide you with specific and unique tracking links that you may place on your website or other internet channels (the “Affiliate Site”) in order to promote our Products (a “Link”). The Link will be keyed to your identity and will send online customers to the Company’s website or websites. You hereby agree to fully cooperate with us regarding the Link and that you will explicitly comply with all of the terms of this Agreement for the promotion of the Link at all times. We may modify the specific link or links and will notify you if we do so. You agree to only use Links that are made available by us or otherwise previously approved by us and to display the Link prominently on your website or social media page.
b. By clicking on a Link posted on the Affiliate Site, a customer will be taken to our Website (an “Affiliate Lead”). Each Affiliate Lead will expire fifteen (15) days from the date the Affiliate Lead clicked on the Link made available by you. We will pay you a commission (a “Commission”) as further described herein for each new Affiliate Lead who purchased a Product after clicking on a Link made available by you (a “Customer Transaction”), provided that you remain eligible to receive a Commission pursuant to the terms of this Agreement. You will receive a Commission payment for that Customer Transaction only, regardless of any additional purchases made by that Affiliate Lead after the initial Customer Transaction. For example, if the initial Customer Transaction is for one Product, and there is a subsequent transaction by that same Affiliate Lead for an additional Product, Affiliate will receive Commission for the initial purchase. The Affiliate will not be entitled to receive Commission on any additional purchases of Products by that same Affiliate Lead.
c. To be eligible for Commission (i) you must be accepted and in good standing in the Program in accordance with Section 2 hereof, (ii) a Customer Transaction must have occurred, and (iii) a Customer must not return the Product during the 30-day period after the Customer Transaction. You are not eligible to receive a Commission or any other compensation if: (1) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (2) the Affiliate Lead has paid or will pay such commissions, referral fees, or other compensation directly to you, (3) the Commission payment has been obtained by fraudulent means, misuse of the Link, misuse of the Affiliate Tool, breach of any of our terms and conditions or by any other means that the Company deems to breach the spirit of the Program, (4) the Affiliate Lead participates in any of the Company’s partner programs and is eligible to receive commission in relation to the Customer Transaction, (5) the Affiliate Lead was referred by any other partner or affiliate links of the Company (i.e., Commissions are only available through your specific Link), (6) the purchase was not made by an already-existing partner or affiliate of the Company, and (7) the purchase may not have been induced by you offering the Affiliate Lead any coupons or discounts. In competitive situations with other affiliates, the Company may elect to provide the Commission to the affiliate that the Company deems to be the most eligible for the Commission, at Company’s discretion. The Company may discontinue Commission payments should any of the eligibility criteria set forth herein fail to be met at any time. If the Company pays any Commission to you for which it is later determined you were not eligible to receive, the Company may offset and reduce any future Commission payments against such ineligible amount.
d. You will only be eligible for a Commission payment for any Customer Transactions that derived from Affiliate Leads generated by the Link that the Company makes available to you and are accepted by the Company. An Affiliate Lead will be considered valid and accepted if, in Company’s reasonable determination: (i) it is a new potential customer of the Company, and (ii) is not, at the time of submission or sixty (60) days prior, one of the Company’s pre-existing customers, or involved in the Company’s active sales process. Note that cookies used as part of the Program have a fifteen (15) day duration. If a potential customer clears their cookies during this period, the company shall not be liable for any Commissions that may have been owed to you.
e. Notwithstanding the foregoing, the Company may choose not to accept an Affiliate Lead or Customer Transaction in its reasonable discretion. If an Affiliate Lead does not purchase the Product within fifteen (15) days of their first click on the Link, you will not be eligible for a Commission payment, even if the Affiliate Lead decides to purchase after the time period has expired. An Affiliate Lead is not considered valid if its first click on the Link is after this Agreement has expired or terminated. Once Company receives the Affiliate Lead information, the Company may elect to engage with the prospect directly, regardless of whether or not the Affiliate Lead is valid. If an Affiliate Lead is not valid then the Company may choose to maintain it in the Company’s database and may choose to engage with such Affiliate Lead. Any engagement between the Company and an Affiliate Lead will be at Company’s discretion.
4. Additional Terms and Conditions.
a. You acknowledge and agree that as of the date you accept this Agreement, understand and approve of the Products and shall recommend the use of the Products to the Affiliate Leads unless and until this Agreement is terminated in accordance with the terms hereof.
b. You agree to comply with all applicable laws in the performance of your obligations and responsibilities hereunder. You must comply promptly with all opt out, unsubscribe, “do not call” and “do not send” requests. For the duration of this Agreement, you shall establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, “do not call” and “do not send” requests.
c. During the term of this Agreement, in the event that the Company make its trademark, logo or name (the “Company’s Marks”) available to you within the Affiliate Tool, you may use the trademark as long as you follows all quality and other the usage requirements communicated by the Company to you from time to time. Subject to the compliance with the terms of this Agreement, we hereby grant you a non-exclusive, non-transferable, revocable, limited license to access our use the Company’s Marks solely and exclusively in conjunction with identifying our Company and brand on the Affiliate Site to send customers to the Links we provide. Affiliate must: (i) only use the images of the Company’s Marks that Company expressly makes available to you, without altering the Company’s Mark’s in any way; (ii) only use the Company’s Marks in connection with the Programand this Agreement; and (iii) immediately comply if the Company requests that you discontinue use of the Company’s Marks. You must not: (1) use the Company’s Marks in a misleading or disparaging way; (2) use the Company’s Marks in a way that implies the Company endorses, sponsors or approves of your services or products; or (3) use the Company’s Marks in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
d. You must be at least 18 (eighteen) years of age to participate in our Program or use the Affiliate Tool. By requesting to participate in or submitting an application to join our Program, you represent and warrant that you are at least 18 years of age and may legally agree to this Agreement. The Company assumes no responsibility or liability for any misrepresentation of your age.
e. In addition to the other covenants and agreements in this Agreement, the Affiliate agrees not to use the Program: (i) for any unlawful purpose or any purpose prohibited under this Agreement; (ii) in any way that could damage our websites, products, services, brand reputation, or the general business of the Company; (iii) to harass, abuse, or threaten others or otherwise violate any person's legal rights; (iv) to violate any intellectual property rights of the Company or any third party; (v) to upload or otherwise disseminate any computer viruses or other software that may damage the property of another; (vi) to perpetrate any fraud; (vii) to engage in or create any unlawful gambling, sweepstakes, or pyramid scheme; (viii) to publish or distribute any obscene or defamatory material; (ix) to publish or distribute any material that incites violence, hate, or discrimination towards any group; or (x) to unlawfully gather information about others.
5. Commissions and Payment Terms.
a. The Company will pay you a Commission equal to ten percent (10%) of net sales for each eligible Customer Transaction. For purposes of Commissions hereunder, net sales shall be determined after taking into account shipping and handling charges, taxes, and any discounts or rebates applicable to the Customer Transaction.
b. The Company will pay the Commission amount due to you for an applicable month within forty-five (45) days after the end of each calendar month for any Commission amounts that you becomes eligible for in accordance with this Agreement. The Company will determine the currency in which it pays the Commission, as well as the applicable conversion rate. The Company will not pay more than one Commission payment or other similar referral fee on any given Customer Transaction (unless Company chooses to in its discretion). You are responsible for payment of all taxes applicable to Commissions received by you. All amounts payable by the Company to you are subject to offset by Company against any amounts owed by you to Company.
c. We will determine whether payout is permissible in our sole and exclusive discretion. We reserve the right to reject clicks and/or sales that do not comply with the terms of this Agreement.
d. Processing and fulfillment of orders will be our sole responsibility.
e. In order to receive Commissions hereunder, the Company may request additional information from you from time to time, such as address information, as well as accounting and tax documentation, such as a W-8 or W-9 tax form. Accounting information may include the routing and account number of a bank where you wish to post a direct deposit or may include an email address for an online method of payment.
f. For any disputes as to Commissions, the Company must be notified within thirty (30) days of your receipt of a Commission. We will review each dispute notification as well as the underlying payout transaction to which it is related. Disputes filed after thirty (30) days of receipt of a Commission will not be eligible for review.
6. Reports. You may log into the Affiliate Tool to review reports related to your participation in the Program, including information relating to Affiliate Leads, Customer Transactions and Commissions. Such reports are made available by a third party that provides the Affiliate Tool and for which the Company assumes to responsibility. The Provider of the Affiliate Tool may update or change the features or functionality of the Affiliate Tool without our consent or approval. We will not be responsible for any changes or updates made to the Affiliate Tool. In addition, any reports or information made available through the Affiliate Tool have not been verified for accuracy by the Company, and as such, we hereby disclaim and make no representations or warranties regarding the accuracy or validity of any such reports and information.
7. Representations and Warranties.
a. You hereby represent and warrant that (i) if you are a corporation, limited liability or other entity represents and warrants that you are duly organized, validly existing and in good standing under the laws of the state of its incorporation, and has all of the requisite power and authority under the laws of such state to conduct your business as now being conducted and to perform your obligations as contemplated by this Agreement, or if you are an individual, that you have the capacity and power to enter into and perform your obligations under this Agreement; and (ii) this Agreement has been duly authorized, executed and delivered by you, and constitutes a legal, valid and binding obligation, enforceable against you in accordance with its terms, subject to bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting the rights and remedies of creditors and secured parties.
b. You further represents, warrants and covenants that your sales and marketing practices shall be performed in accordance with generally accepted industry standards. You shall not make any representations or warranties regarding the Products on behalf of the Company, without the Company’s prior written consent. You agree to market and promote the Products in such manner as may be communicated by the Company and consistent with any quality control guidelines made available by the Company from time to time.
c. THE COMPANY AND ITS AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY OR TIMELINESS OF THE PRODUCT FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. COMPANY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE PRODUCTS INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
8. Indemnification; Limitations of Liability.
a. You shall indemnify and hold harmless the Company and each person who controls such other party, and each of their respective principals, shareholders, members, managers, directors, officers, agents, employees, and representatives hereof (each, an “Indemnified Party”), from and against all losses, expenses, claims, damages and liabilities (including reasonable costs of investigation and legal expenses) incurred by them which result from, arise out of, or are based upon: (i) any breach by you of this Agreement; (ii) any violation by you of any applicable law; or (iii) your negligence or willful misconduct. The obligations set forth in this section shall survive termination of this Agreement.
b. EXCEPT WITH RESPECT TO SECTION 8.A OR FOR ANY BREACHES OF YOUR CONFIDENTIALITY OBLIGATIONS OR WITH RESPECT TO THE COMPANY’S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR TO ANY THIRD-PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT, OR IN FURTHERANCE OF THE PROVISIONS AND OBJECTIVES OF THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO (i) LOST PROFITS, (ii) LOSS OF USE OR INTERRUPTION OF BUSINESS DAMAGES, (iii) LOST OR INACCURATE DATA, (iv) COST OF COVER, (v) PROCUREMENT OF SUBSTITUTE PRODUCTS, TECHNOLOGY OR SERVICES, OR (vi) OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF A PARTY’S PRODUCTS.) ALL OF THE ABOVE LISTED LIMITATIONS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS DISCLAIMER OF LIABILITY FOR DAMAGES WILL NOT BE AFFECTED IF ANY REMEDY PROVIDED HEREUNDER SHALL FAIL OF ITS ESSENTIAL PURPOSE. FURTHER,
c. IN NO EVENT SHALL THE COMPANY'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, EXCEED $1,000.
9. Term; Termination and Suspension.
a. The term of this Agreement will commence when we accept you into the Program. Thereafter, this Agreement shall continue until terminated in accordance with this Section 9. This Agreement may be terminated by either party, with or without cause, on fifteen (15) days advance written notice to the other party. Upon termination of this Agreement, each party shall immediately cease using any materials contemplated by this Agreement upon such termination and take such other appropriate steps, including, without limitation, removing references from the other party on its own website and disabling any hyperlinks to the other party’s website.
b. Upon termination, you will be eligible to receive Commissions earned prior to the date of termination.
c. If you fail to follow the terms of this Agreement or any other legal terms we have posted anywhere on our website or websites, you forfeit all rights, including the right to any unclaimed Commissions. We specifically reserve the right to immediately terminate this Agreement if you violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material.
d. At the termination of this Agreement, any provisions that would be expected to survive termination by their nature, including the indemnification, limitations of liability, confidentiality, and intellectual property, shall remain in full force and effect.
10. Intellectual Property.
a. You acknowledge and agree that the Company shall maintain exclusive right, title, interest and ownership to its Intellectual Property (as defined below) and you shall not obtain any right, title, interest and ownership in Company’s Products or its Intellectual Property except as specifically set forth herein. “Intellectual Property” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
b. Except as expressly provided herein or otherwise consented to by us, you are not permitted to use any of the Company’s Intellectual Property or any confusingly similar variation of the Company’s Intellectual Property without our express prior written permission. This includes a restriction on using the Company’s Intellectual Property in any domain or website name, in any keywords or advertising, in any metatags or code, or in any way that is likely to cause consumer confusion.
c. Any unauthorized use of Company Intellectual Property will constitute unlawful infringement and we reserve all of our rights, including the right to pursue an infringement suit against you in federal court.
11. Confidentiality.
a. The Company may disclose Confidential Information (as defined below) to the Affiliate, which is kept and protected as confidential and which is essential for carrying out the Company’s business in a highly competitive market. Confidential Information may be used by Affiliate only in connection with the performance of its obligations hereunder and shall be maintained in strict compliance with the terms of this Section 11.
b. For the purpose of this Agreement, the term “Confidential Information” shall mean any and all trade secrets, confidential knowledge, regulatory strategy and status, know-how, product information, customer information, technical data or other proprietary information or materials of Company. By way of illustration but not limitation, Confidential Information includes: (i) inventions, ideas, samples, processes, formulas, data, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding plans for research, development, regulatory status, new products, marketing and selling, business plans, budgets and unpublished financial statements, licenses, prices and costs, suppliers and customers; (iii) information regarding the skills and compensation of employees or consultants of the party; and (iv) names, identities, location and business operations or prospective and current customer of Company. In addition, Confidential Information shall include any information relating to the Company that derives independent economic value, actual or potential, from not being generally known or readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use and is the subject of reasonable efforts under the circumstances, to maintain its secrecy.
c. Confidential Information shall not include: information that is or becomes publicly available by means other than an unauthorized disclosure by Affiliate; information that is independently developed by Affiliate or its authorized agents; information that is approved for release pursuant to written authorization of the Company and information that is required to be disclosed in connection with a request pursuant to legal process, in which case the Affiliate shall provide prompt written notification to the Company of such obligation to the extent permitted by law. If Affiliate believes that any of the above exceptions apply to Confidential Information, the Affiliate shall provide prompt written notice to the Company of its intent to disclose the information to a third party.
d. The Affiliate agrees now and at all times in the future that all Confidential Information shall be held in strict confidence. The Affiliate shall take all actions reasonably necessary to ensure that the Confidential Information remains strictly confidential and is not disclosed to or seen, used or obtained by any person or entity except in accordance with the terms of this Agreement. The Affiliate agrees not to disclose such information except where a party may be exposed to civil or criminal proceedings for failure to comply, when subject to divulge such information by duly constituted authorities or court process, when subject to governmental or regulatory audit or investigation, or except to the extent that disclosure is required to satisfy the intent of this Agreement and provided that such third party agrees in writing to maintain the confidentiality of the Confidential Information. Without in any way limiting the foregoing, all independent contractors, employees, units, divisions, segments, or affiliates of the Affiliate who may have access to Confidential Information shall be informed with regard to a party’s obligations under this Agreement and shall not, under any circumstances use the Confidential Information in a manner which would compete with the business of the Company.
e. The Affiliate acknowledges that the unauthorized use, disclosure, or duplication of any Confidential Information is likely to cause irreparable injury to the Company or to the Company’s customers for which it will have no adequate remedy at law. Accordingly, the Affiliate hereby consents to the entry of injunctive relief against it to prevent or remedy any breach of the confidentiality obligation described herein without the other party being required to post bond. Further, the Affiliate agrees that any violation of this section shall be a material breach of any and all agreements with the Company, whether now existing or entered into in the future, and shall entitle the Company to immediately terminate any agreements without penalty upon notice to the Affiliate.
f. The Affiliate further agrees that the Affiliate shall not make any public remarks about the Company or its affiliates regarding the matters addressed in this Agreement, the business practices of the Company or any other remarks that disparage the conduct of the Company to any third party in the course of the parties’ relationship.
g. The Affiliate shall establish and maintain policies and procedures to ensure compliance with this section. The terms of this section shall apply to all Confidential Information so long as the Affiliate has possession of such Confidential Information, including after termination of any contractual or other relationship between the parties. In the event that a party brings an action in a court of competent jurisdiction to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover its reasonable costs and expenses incurred in enforcing its rights hereunder.
h. Upon termination of this Agreement, the Affiliate shall promptly destroy or return all Confidential Information received by the Company, including all copies thereof. Notwithstanding any destruction or return of Confidential Information pursuant to this section, the Affiliate shall continue to be bound by the obligations of confidentiality in this Agreement in accordance with its terms.
12. Modifications. The Company may, from time to time and at any time, modify this Agreement. You agree that the Company has the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Website and that modifications or variations will replace any prior version of this Agreement, unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement. If we update or replace the terms of this Agreement, we will use commercially reasonable efforts to inform you of such changes, including by email. If you do not agree to the modification, update or replacement, you should immediately cease participating in the Program and this Agreement may be terminated in accordance with Section 9 hereof. Your continued participation in the Program or use of Links following any such modification, update or replacement shall be conclusively deemed as your acceptance and agreement to such modified, updated, or replacements terms.
13. Monitoring.
a. You are solely responsible for ensuring operation and maintenance of the Affiliate Site, including technical operations, written claims, links, and accuracy of materials. You must ensure, as noted above, that the Affiliate Site does not infringe upon the intellectual property rights of any third party or otherwise violate any legal rights.
b. We may monitor your account, as well as clicks or Customer Transactions originated from the Affiliate Site. If we determine you are not in compliance with any of the terms of this Agreement, we have the right to immediately terminate your participation in the Program in addition to any other remedies available hereunder or in law or equity.
14. Miscellaneous.
a. This Agreement contains the entire understanding and the full and complete agreement of the parties and supersedes and replaces any prior understandings and agreements among the parties with respect to the subject matter hereof.
b. If any provision of this Agreement is held invalid or unenforceable, such invalidity shall not affect the enforceability of any other provision of this Agreement, all of which shall remain valid and enforceable.
c. Nothing contained within this Agreement shall be construed to form any partnership, joint venture, agency, franchise, or employment relationship. You are an independent contractor of the Company and will remain so at all times.
d. The waiver by either party of the breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party and shall not operate to be construed as a waiver of any breach of any other provision of this Agreement.
e. The laws of the State of New York, without regard to conflict of law provisions, shall govern this Agreement and any dispute arising hereunder. In case of any dispute arising under this Agreement, the parties agree that such dispute shall be resolved by litigation occurring in the state or federal courts located in the City of New York, New York. The parties acknowledge and agree to the personal jurisdiction of such state and federal courts. The parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non-conveniens or similar doctrine. IN ADDITION, THE PARTIES HEREBY WAIVE THE RIGHT TO BRING ANY CLASS ACTION LITIGATION IN CONNECTION WITH THIS AGREEMENT AND ANY RIGHT TO TRIAL BY JURY.
f. This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by you. If this Agreement, or the rights granted hereunder, are assigned, sold, leased or otherwise transferred by the Company, the rights and liabilities of the Company will bind and inure to any assignees, administrators, successors, and executors.
g. Headings of parts and subparts under this Agreement are for convenience and organization, only. Headings shall not affect the meaning of any provisions of this Agreement.
h. The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, disease, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
i. Nothing in this Agreement shall be considered as conferring any right or benefit on a person not a party to this Agreement nor imposing any obligations on either party hereto to persons not a party to this Agreement.
j. Electronic communications are permitted to both parties under this Agreement, including email or fax. For any questions or concerns, please email us at the following address: affiliates@shopfollowsuit.com.
k. On a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
Last updated: March 8, 2021