Affiliate program terms & conditions

By clicking on “I agree” (or a similar box or button) when you sign up to be an upcoach Partner or participate in any Partner Program activities, you agree to be bound by the following Partner Program Agreement (the “Agreement”). The Agreement is between you, as partner (“You” or “Partner”), and upcoach, LLC (“upcoach”). Each of Partner and upcoach may be referred to as a “Party”, and together as the “Parties”. You can review the current version of the Agreement at any time at https://upcoach.wpengine.com/partner-program-terms. upcoach reserves the right to update and change the Agreement by posting updates and changes here: https://upcoach.wpengine.com/partner-program-terms. If a significant change is made, we will provide reasonable notice by email. You are advised to check the Agreement from time to time for any updates or changes that may impact You. Any reference to the Agreement includes any and all terms and documents incorporated by reference.

By agreeing to participate in the Partner Program, You agree with and accept all of the terms and conditions contained in this Agreement, and upcoach’s other policies, including but not limited to upcoach’s Privacy Policy and upcoach’s Terms of Service (collectively, “upcoach’s Policies”). For the avoidance of doubt, all such upcoach’s Policies form part of this Agreement and are incorporated by reference.‍

1. Partner Responsibilities

1.1. Marketing Activities

1. Partner will bear all costs and expenses related to Partner’s marketing or promotion of upcoach or Partner’s products or services associated with Partner’s participation in the Partner Program (collectively, “Partner Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined by upcoach in its sole discretion.
2. In no event will Partner engage in any Partner Marketing Activities except as expressly set forth in this Agreement. In conducting all Partner Marketing Activities, Partner will comply with all applicable laws, rules, regulations and directives, including but not limited to those relating to email marketing and “spamming”.
3. Without limiting the generality of Section 1.1.2, Partner will (i) not send any email regarding upcoach to any individual or entity that has not requested such information; (ii) always include Partner’s contact information and “unsubscribe” information in any email regarding upcoach; and (iii) not imply that such emails are being sent on behalf of upcoach.
4. A Partner will not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to upcoach; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to upcoach; (iii) make any false, misleading or disparaging representations or statements with respect to upcoach; (iv) solicit any of upcoach’s customers to leave upcoach; (v) copy, resemble or mirror the look and feel of upcoach’s websites, upcoach’s Trademarks (as defined below) or upcoach’s services or otherwise misrepresent Partner’s affiliation with upcoach; or (vi) engage in any other practices that may adversely affect the credibility or reputation of upcoach, including but not limited to, sending email communications or using any website in any manner, or having any content on any website, that (a) uses aggressive or low-quality marketing, including marketing services that are unrelated to upcoach or the Partner’s services; (b) promotes sexually explicit materials, violence, discrimination based on race, sex, religion, nationality, disability, sexual orientation or age, or any illegal or objectionable activities; or (c) violates any intellectual property or other proprietary rights of any third party; or (d) violates upcoach’s Terms of Service.
5. Anything Partner communicates in marketing or advertising any upcoach service or opportunity must be true and accurate. Claims that relate to any upcoach service or opportunity that are untrue or fraudulent are strictly prohibited. Partner may not claim that any government, person, or entity endorses or supports upcoach. Partner may not use the intellectual property of any other person or entity in advertising any upcoach service or opportunity.

1.2. Compliance with Laws

In addition to, and without limiting the provisions of this Agreement, Partner will perform its obligations under this Agreement in accordance with the highest applicable industry standards and in compliance with all applicable laws, rules and regulations.

1.3 Unauthorized and Prohibited Activities

1. Partner will not promote or advertise upcoach on coupon, deal, or discount sites or on GTP/Get Paid to Click or other incentivized sites, or display any offer code on a public-facing page or through the use of a “click to display” offer code.
2. Partner will not use its links directly in any pay-per-click advertising;
3. Partner will not purchase search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the upcoach Trademarks (as defined below) or any variations or misspellings thereof that may be deceptively or confusingly similar to the upcoach Trademarks.
4. Partner will not create or participate in any third party networks or sub-affiliate networks without the express written permission of upcoach.
5. Partner will not use or encourage any means of delivering fraudulent traffic, including but not limited to use of bots or toolbar traffic, cookie stuffing, or use of false or misleading links.
6. Partner will not use direct linking to any page on any upcoach website, without prior written permission from upcoach.
7. Partner will not mask its referral sites or use deceptive redirecting links.
8. Partner will not disparage the products or services of any other person or entity, including without limitation the products or services of a competitor of upcoach, any other customer or partner of upcoach, or upcoach itself.

1.4. FTC Guidelines

1. The Federal Trade Commission in the United States (“FTC”) has guidelines for governing endorsements and testimonials. These rules are aimed at increasing transparency between endorsers and consumers. As a member of the Partner Program with upcoach, Partner receives compensation for referrals made to upcoach. This may establish a “material connection” according to FTC rules, which creates an obligation for Partner to provide disclosure to consumers.
2. Full compliance with these guidelines requires, among other things, that (a) Partner clearly and conspicuously disclose that Partner is being compensated for referring customers to upcoach; and (b) Partner is not engaged in misleading or deceptive advertising. For further information Partner should refer to the statement released by the FTC regarding these guidelines.

1.5. Other Partner Terms

1. Partner must have an active upcoach customer account.
2. If the Partner is an individual, You must be the older of (i) 18 years; or (ii) at least the age of majority in the jurisdiction where You reside and from where You carry out Partner activities.
3. You confirm that You are becoming a Partner for the purposes of carrying on a business activity and not for any personal, household or family purpose.
4. To become a Partner, Partner must create a Partner Account by providing all information indicated as required. upcoach may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that upcoach will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. upcoach cannot and will not be liable for any loss or damage arising from Partner’s failure to maintain the security of the Partner Account and password.
5. Partner acknowledges and agrees that Partner will be responsible for the performance of all of its obligations under the Agreement, regardless of whether it sublicenses or subcontracts any such obligations to any third party, including but not limited to any affiliates or subsidiaries of Partner.
6. Partner will promptly inform upcoach of any information known to Partner that could reasonably lead to a claim, demand or liability of or against upcoach by any third party.
7. Partner acknowledges and agrees that upcoach may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on upcoach’s website, available at https://upcoach.wpengine.com/partner-program-terms and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, upcoach will provide reasonable notice by email. Partner’s continued participation in the upcoach Partner Program after the amended Partner Program Agreement is posted to upcoach’s website constitutes Partner’s agreement to, and acceptance of, the amended Agreement. If Partner does not agree to any changes to the Agreement, Partner must terminate the Agreement by discontinuing its participation in the upcoach Partner Program.
8. Partner acknowledges and agrees that Partner’s participation in the upcoach Partner Program, including information transmitted to or stored by upcoach, is governed by the upcoach Privacy Policy found at https://upcoach.wpengine.com/privacy/.
9. If Partner’s recruiting efforts include claims related to the potential income a upcoach customer can make, or if You make reference to income You have made, or if You make reference to any lifestyle opportunities You have because of upcoach, the following guidelines must be adhered to: (a) Your statements must be completely true and accurate and supported by evidence; (b) if You use a hypothetical scenario, You must clearly label it as a hypothetical scenario; and (c) Your statements must be accompanied by the upcoach Income Disclosure Statement found at https://upcoach.wpengine.com/income-disclaimer.

2. Referral Fees

2.1. Payment of Fees

1. Upon acceptance into the Partner Program, You will be assigned one or more unique Partner URLs that You will use to advertise upcoach. When another person (a “Prospect”) clicks through that URL, a cookie (or similar tracking technology (hereinafter “Cookie”)) will be set in the Prospect’s browser. When the Prospect creates a upcoach account by using Your Partner URL, the Cookie on the Prospect’s browser, corresponding to Your unique URL, registers a “Sale,” and each such account is a “Sold Account.” In the event that a Prospect has multiple Partner Cookies, the most recently-acquired Cookie will determine which Partner is credited with a Sale.
2. Subject to Partner’s compliance with this Agreement, You will be entitled to a referral fee for each Sold Account that generates a payment to upcoach monthly or annually. The referral fee amount is determined by the campaign you promote, and the fees received by upcoach for a Sold Account (the “Referral Fees”) during the active referral commission period (See Section 2.1.5 for more details on ‘referral commission period’.) Payments of any Referral Fees will be made on the 25th of each month following upcoach’s receipt of such payments.
3. Referral Fees are paid only for transactions that actually occur between upcoach and a Prospect. If the transaction does not actually occur, or if payment from a Sale is not actually received by upcoach, you will not be paid a Referral Fee on the transaction. If a referral does not link or attach to Your Partner account within 30 days from such referral’s subscribing to upcoach’s services, such referral will not be deemed Your Sold Account and You will not be entitled to any Referral Fees from such referral. In order for an account to be linked to your Partner account, a referral must either use your affiliate link directly or reach out to affiliates@upcoach.com within those first 30 days requesting to be linked. 
   If payment for a Sold Account later results in a refund or charge-back, and if a Referral Fee was paid to You for that Sold Account payment, then the Referral Fee will be deducted from any future Referral Fees. If upcoach determines, in its reasonable discretion, that any Sale was procured fraudulently or as a result of any violation of this Agreement, in addition to upcoach’s rights under Section 3.1, no Referral Fees will be paid to You for such Sale, or if such violation or fraud is discovered by upcoach after payment, such amounts shall be deducted from any future Referral Fees. 
   A referral may request at any time to be removed from Your Partner Account and upon such request, You will no longer be entitled to receive any Referral Fees for such referral.
4. If payments to the Referral Partner’s PayPal address have failed, all efforts will be made to contact the Referral account holder, with the contact information provided in their affiliate account. If there’s no response from the affiliate account holder within 90 days, the affiliate commissions will be voided.
5. Referral Fees (“Payable Commissions”) shall be paid: (a) for a maximum of 24 months from the first Customer Acquired date or Qualified Action date and (b) no sooner than 45 days after the related transaction occurs, and (c) after upcoach has received any net funds due and owing from the relevant Customer(s) for the current period.

2.2. Partner Representations; Taxes

1. Partner hereby represents and warrants to Company that You are engaged in an independent business enterprise, and that You have complied with all business requirements necessary to operate Partner’s business, if any, such as licensing, tax and other business operation requirements.
2. You are responsible for any and all tax liabilities, including without limitation income tax liabilities that arise from or in any way relate to any Referral Fees You receive from upcoach. If You are not a resident of the United States, upcoach may withhold tax (including without limitation VAT) where required to by applicable law. Where upcoach is required to withhold tax, upcoach will document such withholding.

2.3. Inventory Loading/Rebates

Partner will not be paid any Referral Fees for payments made on Your own User Account(s). Partner is not permitted to open a upcoach account under the name of another person or entity, or under a fictitious name. Partner is not permitted to open a upcoach account under any name merely for the purpose of obtaining Referral Fees or any other compensation, including without limitation incentives or prizes that may be offered from time to time. Partner may not pay for another person’s account. Partner is not permitted to offer cash rebates or other monetary incentives to actual or potential Sales. Violation of this paragraph shall constitute a material breach of this Agreement, and You agree to repay to upcoach all Referral Fees earned as a result of any such violation.

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3. Termination

3.1. Termination

1. Unless otherwise specified in the Agreement, any Party may terminate this Agreement at any time, with or without cause, effective immediately upon notice to another Party.
2. Fraudulent or other unacceptable behavior by Partner, including breach of any upcoach Policies, as determined by upcoach in its sole discretion, may result in one or more of the following actions being taken by upcoach: (a) termination of Your affiliation with upcoach in its entirety and termination of all services provided to You; (b) suspension of some or all Your privileges under the Partner Program; and/or (c) termination of Your Partner account entirely without notice to, or recourse for, You, in which case You shall forfeit all Referral Fees owed to You, either as of the date of termination or thereafter accruing.
3. At any time that your upcoach customer account is cancelled or suspended by either Party, Partner’s participation in the Partner Program shall be automatically terminated and Partner shall no longer be entitled to any further Referral Fees. If Partner later activates a upcoach customer account, Partner will be entitled to apply for participation in the Partner Program and to earn Referral Fees on any new Sold Accounts. For the purpose of clarity, Partner will forfeit all Referral Fees from its Sold Accounts prior to such termination.

3.2. Results of Termination

1. Upon termination of this Agreement: (a) Partner will immediately cease displaying any upcoach Materials (as defined below) or any upcoach Trademarks (as defined below) on any website or otherwise; and (b) all rights granted to Partner under this Agreement will immediately cease, including but not limited to the right of Partner to access the Partner Account and Partner Dashboard, or to receive any payments of Referral Fees under this Agreement, unless otherwise determined by upcoach in its sole discretion.
2. This Section 3.2 and the following Sections will survive any termination or expiration of this Agreement: Section 4.5 (Proprietary Rights of upcoach), Section 5 (Confidentiality), Section 6 (Disclaimer of Warranty), Section 7 (Limitation of Liability and Indemnification), and Section 8 (General Provisions). In addition, any provisions of this Agreement that by their nature are intended to survive, will survive termination.

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4. Intellectual Property Rights

4.1. upcoach Materials

1. All upcoach Materials will be solely created and provided by upcoach unless otherwise agreed to by upcoach in writing in advance. upcoach will provide Partner with copies of, or access to, upcoach Materials. By using the upcoach Materials, You indicate Your acceptance of our usage guidelines set forth in this Agreement and You understand that a violation of these guidelines or this Agreement will result in the termination of Your license or permission to use the upcoach Materials. The upcoach Materials are provided “as is” and without warranty of any kind.
2. Partner may display upcoach Materials on its websites solely for the purpose of marketing and promoting upcoach and its services during the term of this Agreement, or until such time as upcoach may, upon reasonable prior notice, instruct Partner to cease displaying the upcoach Materials. Partner may not alter, amend, adapt or translate the upcoach Materials without upcoach’s prior written consent. Nothing contained in any upcoach Materials will in any way be deemed a representation or warranty of upcoach. The upcoach Materials will at all times be the sole and exclusive property of upcoach and no rights of ownership will at any time vest with Partner even in such instances where Partner has been authorized by upcoach to make changes or modifications to the upcoach Materials.
3. “upcoach Materials” means any marketing or promotional materials relating to upcoach or its platform or products, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the upcoach Trademarks.

4.2. upcoach Trademarks

1. During the term of this Agreement, upcoach hereby grants to Partner a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to display the upcoach Trademarks for the sole purpose of marketing and promoting upcoach and its services. Partner acknowledges and agrees that: (a) it will use upcoach’s Trademarks only as permitted under this Agreement; (b) it will use the upcoach Trademarks in a lawful manner and in strict compliance with all format(s), guidelines, standards and other requirements prescribed by upcoach in writing from time to time; (c) the upcoach Trademarks are and will remain the sole property of upcoach; (d) nothing in this Agreement will confer in Partner any right of ownership in the upcoach Trademarks and all use thereof by Partner will inure to the benefit of upcoach; (e) Partner will not, now or in the future, apply for or contest the validity of any upcoach Trademarks; and (f) Partner will not, now or in the future, apply for or use any term or mark confusingly similar to any upcoach Trademarks.
2. “upcoach Trademarks” means the trademarks, logos, service marks and trade names of upcoach LLC, whether registered or unregistered, including but not limited to the word mark upcoach and the “upcoach” design.

4.3. Trademark Usage Guidelines

Partner shall only use and visually present the upcoach Trademarks as follows. Partner agrees that Your use of the upcoach Trademarks in violation of these guidelines will result in automatic termination of Your participation in the Partner Program, this Agreement, and the license and/or permission to use the upcoach Trademarks.

1. Your use must not mislead consumers as to our sponsorship of, affiliation with or endorsement of your company or your products or services.
2. The upcoach Trademarks are our exclusive property. All goodwill that results from Your use of the upcoach Trademarks will be solely to our benefit. You will not take any action that is at odds with our rights or ownership of the upcoach Trademarks. 
3. The upcoach Trademarks must be used in a respectful manner. The upcoach Trademarks may not be used in a way that harms us, our products or services, or in a manner which, in our opinion, lessens or otherwise damages our reputation or the goodwill in our brand assets. You may not associate the upcoach Trademarks or any other of our brand assets with any illicit or illegal activities or use them in a way that is deceptive or harmful.
4. You may use the upcoach® mark to advertise upcoach in your non-paid advertising. Any time You use the upcoach® mark, You must do so in a way that is not likely to confuse readers or cause them to think that You are speaking for upcoach. Whether Your use of upcoach’s® is confusing will be determined by upcoach in upcoach’s sole and absolute discretion.
5. Any time You use the word “upcoach” it must be immediately followed by the “Circle R” “®” denoting it as a registered trademark of upcoach, LLC.

You must plainly display (i.e., not in a link, or in small font) the following disclaimer in any website, social media site, email, and/or other communication or media You choose to use: I am not an employee or representative of upcoach, LLC. I am an independent upcoach Partner and I receive referral payments from upcoach in this role. All opinions expressed herein are my own and are not official statements of upcoach or any party affiliated with upcoach.

4.4. Restrictions on Partner’s Use of the upcoach Trademarks

Notwithstanding Section 4.1, Partner will not:

1. use the upcoach Trademarks or variations or misspellings thereof in Partner’s business name, logo, branding, advertising, social media or domain name (including without limitation top-level domains, sub-domains and page URLs), products or services (including without limitation, in the name or design of any application or theme), unless granted express written permission by upcoach in advance of each use; or
2. purchase or register search engine or other pay-per-click keywords (such as Google AdWords), trademarks, email addresses or domain names that use the upcoach Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the upcoach Trademarks.

4.5. Proprietary Rights of upcoach

As between Partner and upcoach, the upcoach Materials, upcoach Trademarks, all information relating to upcoach’s services, and all software, documentation, hardware, equipment, devices, templates, tools, documents, processes, methodologies, know-how, websites, and any additional intellectual or other property used by or on behalf of upcoach or otherwise related to upcoach’s services, the Partner Program,, together with all copyrights, trademarks, patents, trade secrets and any other proprietary rights inherent therein and appurtenant thereto (collectively, “upcoach Property”) will be and remain the sole and exclusive property of upcoach. To the extent, if any, that ownership of any upcoach Property does not automatically vest in upcoach by virtue of this Agreement, or otherwise, and vests in Partner, Partner hereby transfers and assigns to upcoach, upon the creation thereof, all rights, title and interest Partner may have in and to such upcoach Property (and waives any and all moral rights, as applicable), including the right to sue and recover for past, present and future violations thereof.

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5. Confidentiality

5.1 Definition

“Confidential Information” will include, but will not be limited to, any and all information associated with a Party’s business and not publicly known, including specific business information, technical processes and formulas, software, customer lists, prospective customer lists, names, addresses and other information regarding customers and prospective customers, product designs, sales, costs (including any relevant processing fees), price lists, and other unpublished financial information, business plans and marketing data, and any other confidential and proprietary information, whether or not marked as confidential or proprietary. For the avoidance of doubt, as between upcoach and Partner, any information related to a upcoach customer or other partner is the Confidential Information of upcoach.

5.2 Covenants

Each Party agrees to use the other Party’s’ Confidential Information solely as necessary for performing its obligations under this Agreement and in accordance with any other obligations in this Agreement including this Section 5. Each Party agrees that it will take all reasonable steps, at least substantially equivalent to the steps it takes to protect its own proprietary information, to prevent the duplication, disclosure or use of any such Confidential Information, other than (i) by or to its employees, agents and subcontractors who must have access to such Confidential Information to perform such Party’s obligations under this Agreement, who each will treat such Confidential Information as provided in this Agreement, and who are each subject to obligations of confidentiality to such Party that are at least as stringent as those contained in this Agreement; or (ii) as required by any law, regulation, or order of any court of proper jurisdiction over the Parties and the subject matter contained in this Agreement, provided that, if legally permitted, the receiving Party will give the disclosing Party prompt written notice and use commercially reasonable efforts to ensure that such disclosure is accorded confidential treatment. Confidential Information will not include any information that the receiving Party can prove: (A) was already in the public domain, or was already known by or in the possession of the receiving Party, at the time of disclosure of such information; (B) is independently developed by the receiving Party without use of or reference to the other Party’s/ies’ Confidential Information, and without breaching any provisions of this Agreement; or (C) is thereafter rightly obtained by the receiving Party from a source other than the disclosing Party without breaching any provision of this Agreement.

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6. Disclaimer of Warranty

The upcoach Partner Program, the upcoach services, the upcoach Trademarks, and the upcoach Materials are provided “as-is”. upcoach makes no warranties under this Agreement, and upcoach expressly disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability, non-infringement or fitness for a particular purpose. Without limiting the foregoing, upcoach further disclaims all representations and warranties, express or implied, that the upcoach services, the upcoach Trademarks, or the upcoach Materials satisfy all of Partner’s requirements and or will be uninterrupted, error-free or free from harmful components.

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7. Limitation of Liability and Indemnification

7.1. Limitation of Liability

upcoach will have no liability with respect to the upcoach Partner Program, the upcoach services, the upcoach Trademarks, the upcoach Materials or upcoach’s obligations under this Agreement or otherwise for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for losses of profits, goodwill, use, data or other intangible losses resulting in any way from upcoach’s services, the upcoach Trademarks, the upcoach Materials or Partner’s participation or inability to participate in the upcoach Partner Program, even if upcoach has been advised of the possibility of such damages. In any event, upcoach’s liability to Partner under this Agreement for any reason will be limited to the Referral Fees paid to Partner by upcoach during the six (6) month period immediately preceding the event giving rise to the claim for damages. This limitation applies to all causes of action in the aggregate, including, but not limited to, breach of contract, breach of warranty, negligence, strict liability, misrepresentations, and other torts. The foregoing limitations will apply to the fullest extent permitted by applicable law.

7.2. Partner Indemnification‍

Partner agrees to indemnify, defend and hold harmless upcoach and the directors, managers, officers, employees, subcontractors and agents thereof (each, an “Indemnified Party”, and collectively, the “Indemnified Parties”), with respect to any claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees (collectively, “claims”), to the extent that such claim is based upon or arises out of: (a) Partner’s breach of any representation, warranty, obligation or covenant under this Agreement; (b) Partner’s gross negligence or wilful misconduct; (c) any warranty, condition, representation, indemnity or guarantee relating to upcoach granted by Partner to any third party; (d) Partner’s breach of any term of this Agreement or the upcoach Policies (including any documents it incorporates by reference); (e) any third party claim that Partner’s products or services infringes the intellectual property or other rights of a third party; (f) Partner taxes, including any audits or penalties related thereto; and (g) the performance, non-performance or improper performance of the Partner’s products or services.

7.3. Notice of Indemnification

In claiming any indemnification under this Agreement, the Indemnified Party will promptly provide Partner with written notice of any claim that the Indemnified Party believes falls within the scope of the indemnifications provided under this Agreement. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that Partner will control such defense and all negotiations relative to the settlement of any such claim and further provided that in settling any claim the Partner will not make any admission on behalf of the Indemnified Party or agree to any terms or conditions that do or reasonably could result in any admission by, or the imposition of any liability upon, the Indemnified Party without the prior written approval of the Indemnified Party.‍

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8. General provisions

8.1. Force Majeure

upcoach will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, pandemics, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

8.2. Independent Contractors

The Parties to this Agreement are independent contractors. Neither Party is an agent, representative or related entity of the other Party. Neither upcoach nor the Partner will have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or otherwise bind, the other Party. This Agreement will not be interpreted or construed to create an association, agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.

8.3. Non-Exclusivity

Nothing in this Agreement is intended to create, nor will it be construed as creating, any exclusive arrangement between the Parties to this Agreement. This Agreement will not restrict either Party from entering into similar arrangements with others, provided it does not breach its obligations under this Agreement by doing so, including without limitation, any confidentiality obligations.

8.4. Notice

Any notice, approval, request, authorization, direction or other communication under this Agreement will be given in writing and will be deemed to have been delivered and given for all purposes (a) on the delivery date if delivered personally, or by email to Partner’s email address listed in the Partner Account, and to affiliats@upcoach.com; (b) two (2) business days after deposit with an internationally recognized commercial overnight courier service, with written verification of receipt; or (c) five (5) business days after deposit in certified or registered mail, return receipt requested, postage and charges prepaid. Notice will be sent to the Partner at the address provided in the Partner Account, and to upcoach at 1032 E Brandon BLVD #1003 Brandon FL 33511, Attention: Legal Department.

8.5. No Waiver

The failure of any Party to insist upon or enforce strict performance by another Party of any provision of this Agreement or to exercise any right under this Agreement will not be construed as a waiver or relinquishment to any extent of such Party’s right to assert or rely upon any such provision or right in that or any other instance; rather, the same will be and remain in full force and effect. Each waiver will be set forth in a written instrument signed by the waiving Party.

8.6. Entire Agreement

This Agreement, including all upcoach Policies listed on upcoach.com, any completed application form and all guidelines and other documents linked or otherwise incorporated or referenced in this Agreement, sets forth the entire agreement and supersedes any and all prior agreements, written or oral, of the Parties with respect to the subject matter hereof (including, but not limited to, any prior version of this Agreement). Neither upcoach nor the Partner will be bound by, and each Party specifically objects to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is proffered by another Party in any correspondence or other document, unless the Party to be bound thereby specifically agrees to such provision in writing.

8.7. Assignment

All the terms and provisions of this Agreement will be binding upon and inure to the benefit of the Parties to this Agreement and to their respective heirs, successors, permitted assigns and legal representatives. upcoach will be permitted to assign this Agreement without notice to or consent from Partner. Partner will have no right to assign or otherwise transfer this Agreement, or any of its rights or obligations under this Agreement, to any third party without upcoach’s prior written consent, to be given or withheld in upcoach’s sole discretion.

8.8. Applicable Laws

This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to principles of conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement and is hereby expressly excluded.

The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the courts of Delaware and appellate courts having jurisdiction of appeals from such courts with respect to any dispute or claim arising out of or in connection with this Agreement.

8.9. Competitive or Similar Materials

upcoach is not precluded from discussing, reviewing, developing for itself, having developed, acquiring, licensing or developing for or by third parties, as well as marketing and distributing materials, products or services that are competitive with Partner’s products or services, provided that upcoach does not use Partner’s Confidential Information in so doing.

8.10. Modifications to this Agreement

upcoach may modify this Agreement (including any upcoach Policies) at any time by posting a revised version on the upcoach website or by otherwise notifying Partner in accordance with Section 8.4. By continuing to participate in the Partner Program after the effective date of any modifications to this Agreement, Partner agrees to be bound by the modified terms.  It is Your responsibility to check the upcoach website regularly for modifications to this Agreement.  We last modified this Agreement on the date listed on the end of this Agreement.  

8.11. Language

All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

8.12. Non-exclusive remedies

In the event of any breach or threatened breach by Partner of any provision of this Agreement, in addition to all other rights and remedies available to upcoach under this Agreement and under applicable law, upcoach will have the right to (a) immediately enjoin all such activity, without the necessity of showing damages or posting bond or other security; (b) immediately terminate this Agreement and Partner’s access to the Partner Program; (c) receive a prompt refund of all amounts paid to Partner under this Agreement,;and (d) be indemnified for any losses, damages or liability incurred by upcoach in connection with such violation, in accordance with the provisions of Section 7.

8.12. Severability

If any provision of this Agreement is, for any reason, held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability will not affect any other provision of the Agreement, and the Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained within the Agreement