Summary

You can receive 50% recurring commissions on our $49/mo and $499/yr (our main GrowthDay offer at GrowthDay.com and both prices USD), as well as up to 20% commissions on our high-tier offers (CHPC and ULTRA) and up to 10% 1-tier override for partners you refer into our Ambassador program, per the terms below.

You can become a partner here, or login to your portal here on this website.

Referral Partner Agreement

Updated October 6, 2024

By clicking on “I agree” (or a similar box or button) when you sign up to be a GrowthDay Ambassador Referral Partner, use any of GrowthDay's promotional links, or participate in any Ambassador Partner Program activities, you agree to be bound by the following Partner Program Agreement (the “Agreement”). The Agreement is between you, as an Ambassador/promotional partner (“You” or “Partner”), and GrowthDay Inc of 1300 1st St #368 Napa CA 94559 (“GrowthDay”). Each of Partner and GrowthDay may be referred to as a “Party”, and together as the “Parties.”

You can review the current version of the Agreement at any time on our general partner site, where GrowthDay reserves the right to update and change the Agreement by posting updates and changes without notice. You are advised to check the Agreement from time to time for any updates or changes that may impact You. We my provide reasonable notice to you by email at our discretion if we feel any change is significant. 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 GrowthDay’s other policies, including but not limited to GrowthDay’s Privacy Policy and GrowthDay’s Terms of Service (collectively, “GrowthDay’s Policies”, accessible here and here). For the avoidance of doubt, all such GrowthDay Policies form part of this Agreement and are incorporated by reference.

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1. Partner Responsibilities

1.1. Marketing Activities

1.    Partner will promote its unique referral link from GrowthDay at its own expense; Partner will bear all costs and expenses related to Partner’s marketing or promotion of GrowthDay or Partner’s products or services associated with Partner’s participation in the Partner Program to promote GrowthDay (collectively, “Partner Marketing Activities”) in any area, location, territory or jurisdiction, unless otherwise determined by GrowthDay 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 GrowthDay 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 GrowthDay; and (iii) not imply that such emails are being sent on behalf of GrowthDay.

4.    An Partner will not (i) engage in any fax, broadcast, telemarketing or any other offline marketing methods with respect to GrowthDay; (ii) use malware, spyware or any other aggressive advertising or marketing methods in any of its dealings relating to GrowthDay; (iii) make any false, misleading or disparaging representations or statements with respect to GrowthDay; (iv) solicit any of GrowthDay’s customers to leave GrowthDay; (v) copy, resemble or mirror the look and feel of GrowthDay’s websites, GrowthDay’s Trademarks (as defined below) or GrowthDay’s services or otherwise misrepresent Partner’s affiliation with GrowthDay; or (vi) engage in any other practices that may adversely affect the credibility or reputation of GrowthDay, 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 GrowthDay 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) causes a current GrowthDay buyer or member to cancel their membership just to signup under your affiliate link (this is stealing our customers who we worked hard to get), or (e) violates GrowthDay’s Terms of Service.

5.    Anything Partner communicates in marketing or advertising any GrowthDay service or opportunity must be true and accurate. Claims that relate to any GrowthDay service or opportunity that are untrue or fraudulent are strictly prohibited. Partner may not claim that any government, person, or entity endorses or supports GrowthDay. Partner may not use the intellectual property of any other person or entity in advertising any GrowthDay service or opportunity.

6.    Partner understands that GrowthDay may share, edit, clip, use, review, combine, promote, post or repost any Partner marketing content that the Partner has created related to its GrowthDay promotions, for GrowthDay’s own purposes without notice, approval, or further obligation or compensation to Partner outside of the referral compensation listed in Section 2. This means if You create content to promote GrowthDay, then GrowthDay can repost it or package it for its audiences, across any of its websites, apps or platforms, at its sole discretion.

7. Partner MAY NOT use the images, photos or videos of GrowthDay coaches or its founder, Brendon Burchard, in ANY of their marketing. You can only recommend GrowthDay from your own perspective and with your own images, none of it which can represent or cause confusion of representing any GrowthDay coach/teacher. Use only supplied imagery or videos supplied by GrowthDay in your affiliate members area.

 

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. If you are conducting business in or taking orders from persons in other countries, you will follow the laws of those countries. For example, you will comply with the European Union's Privacy and Electronic Communications Directive if you are conducting business in or taking orders from persons in one or more of the European Union countries. 

 

1.3 Unauthorized and Prohibited Activities

  1. Partner will not post its referral link in GrowthDay social media pages, comments or online communities in hopes of getting customers. Partner will only market to its own audience.
  2. Partner will not promote or advertise GrowthDay 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.
  3. Partner will not use its links directly in any pay-per-click advertising;
  4. Partner will not purchase search engine or other pay-per-click keywords (such as Google AdWords), trademarks or domain names that use the GrowthDay Trademarks (as defined below) or any variations or misspellings thereof that may be deceptively or confusingly similar to the GrowthDay Trademarks.
  5. Partner will not create or participate in any third party networks or sub-affiliate networks without the express written permission of GrowthDay.
  6. 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.
  7. Partner will not use direct linking to any page on any GrowthDay website, without prior written permission from GrowthDay.
  8. Partner will not mask its referral sites or use deceptive redirecting links.
  9. 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 GrowthDay, any other customer or Partner of GrowthDay, or GrowthDay itself or any of its founders, teachers, employees, or affiliates.
  10. Partner MAY NOT use the images, photos or videos of GrowthDay coaches or its founder, Brendon Burchard, in ANY of their marketing. You can only recommend GrowthDay from your own perspective and with your own images, none of it which can represent or cause confusion of representing any GrowthDay coach/teacher. Use only supplied imagery or videos supplied by GrowthDay in your affiliate members area.

 

1.4. FTC and other 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 GrowthDay, Partner receives compensation for referrals made to GrowthDay. This may establish a “material connection” according to FTC rules, which creates an obligation for Partner to provide disclosure to consumers. This means you should provide a a short statement that tells your audience your content contains affiliate links and that you may earn money if they click and make a purchase. The advertising disclosure must appear before any affiliate links are visible, cannot be in popup windows, drop down menus, sidebar, footers, the bottom of blog posts or anywhere else that would appear after an affiliate link and/or is not easily visible.  Advertising disclosures must also always be used when promoting an affiliate link on posts/pages, any social media site or email campaign.This disclosure statement should be clear and concise, stating that we are compensating you for your review or endorsement should they start using GrowthDay. Failure to use a proper advertising disclosure will result in an immediate removal from the Partner program and all commissions will be reversed regardless of origin. For more information about FTC disclosure requirements, please review and abide by the FTC's "Dot Com Disclosures" Guidelines at http://www.ftc.gov/os/2013/03/130312dotcomdisclosures.pdf and the FTC's "Endorsement Guidelines" at http://business.ftc.gov/advertising-and-marketing/endorsements. 

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 GrowthDay; 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.

3. If you intend to promote GrowthDay through email campaigns, you must adhere to the following: 

  • Abide by the CAN-SPAM Act of 2003 (Public Law No. 108-187) with respect to our Program. That means people have signed themselves up to receive these emails from you and confirmed their subscription after signing up (double opt-in).You are not allowed to market GrowthDay by email to people who did not ask to be on your email list.
  • Email must be sent on your behalf and must not imply that the email is being sent on behalf of GrowthDay.

 

 

1.5. Other Partner Terms

1.    Partner must have an active GrowthDay customer account or be pre-approved or setup by GrowthDay into our Ambassador program.

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. GrowthDay may reject an application for a Partner Account for any reason, in its sole discretion. Partner acknowledges that GrowthDay will use the email address provided by Partner as the primary method for communication. Partner is responsible for keeping its Partner Account password secure. GrowthDay 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 GrowthDay of any information known to Partner that could reasonably lead to a claim, demand or liability of or against GrowthDay by any third party.

7.    Partner acknowledges and agrees that GrowthDay may amend this Agreement at any time by posting the relevant amended and restated Partner Program Agreement on GrowthDay’s website, available at GrowthDay.com/partners and such amendments to the Agreement are effective as of the date of posting. If a significant change is made, GrowthDay will provide reasonable notice by email. Partner’s continued participation in the GrowthDay Partner Program after the amended Partner Program Agreement is posted to GrowthDay’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 GrowthDay Partner Program.

8.    Partner acknowledges and agrees that Partner’s participation in the GrowthDay Partner Program, including information transmitted to or stored by GrowthDay, is governed by the GrowthDay Privacy Policy and terms found at GrowthDay.com/terms.

9.    If Partner’s recruiting efforts include claims related to the potential income a GrowthDay 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 GrowthDay, 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 compliant with FTC and other guidelines; (d) You must disclaim you are speaking for yourself, and not guaranteeing anyone achieves specific results; (e) You are not claiming GrowthDay will "give" them any specific results.

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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 GrowthDay. 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 GrowthDay 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 GrowthDay monthly or annually as measured by our system. The referral fee amounts are as follows (collectively referred to as the “Referral Fees”):

  • GrowthDay Monthly $49/mo and Annual $49/yr Plans: 50% Referral Fee amount per Sold Account. Partner receives no payments on further one-time sales to Prospects or Sold Accounts, including any special classes, upsells or downsells offered at cart or afterwards via desktop or mobile application including but not limited to iOs and Android, unless stated herein.
  • CHPC (Become a Certified High Performance Coach): $2,000 Referral Fee for a $10,000 Sold Account. This is a one-time Referral Fee, paid to Partner after the customer makes their full payment, has been certified, and has not refunded, canceled, disputed, or declined. Partner receives no payments on further one-time sales to Prospects or Sold Accounts, including any special classes, upsells or downsells offered at cart or afterwards via desktop or mobile application including but not limited to iOs and Android, unless stated herein.
  • ULTRA (Join our Mastermind): $4,500 Referral Fee for a $15,000 Sold Account. This is a one-time Referral Fee, paid to Partner after the customer makes their full payment and has not refunded, canceled, disputed, or declined. Partner receives no payments on further one-time sales to Prospects or Sold Accounts, including any special classes, upsells or downsells offered at cart or afterwards via desktop or mobile application including but not limited to iOs and Android, unless stated herein.
  • 1st Tier Sub-Affiliate 10% Override. If you refer another Partner into the Partner program via your link (making them your "sub-affiliate"), then you will receive 10% override on theirs sales, minus any refunds, cancels, disputes. This is 1st tier only, meaning you get an override only on your sub-affiiates direct sales, not the sales of any of their sub-affiliates or future sub-affiliates they bring on.
  • All commissions are subject to change, at GrowthDay's sole discretion, based on promotional windows, business performance, Partner conduct and other considerations detailed herein. 

 

Unless otherwise stated, payments of any Referral Fees will generally be made to Partners via their Paypal address 45-60 days following GrowthDay’s receipt of such payments minus cancels or refunds, on or around the 15th of each month, though a 10% hold-back may be applied to account for refunds, new partners' performance or certain promotional windows without additional notice, to be paid the following pay period. Referral Fees only apply to the aforementioned offers of GrowthDay (collectively, the “Offers”) associated with your unique URL, purchased on our site and desktop only. No other offers, upsells or future offers sold to Prospects by GrowthDay or its affiliates or related brands count or are eligible for Referral Fees other than those listed herein.

3.    Referral Fees are paid only for transactions that actually occur between GrowthDay and a Prospect. If the transaction does not actually occur, or if payment from a Sale is not actually received by GrowthDay, 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 GrowthDay’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 [email protected] 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 GrowthDay determines, in its reasonable discretion, that any Sale was procured fraudulently or as a result of any violation of this Agreement, in addition to GrowthDay’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 GrowthDay 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.   Any Prospects that become Sold Accounts become GrowthDay customers, and all of their data, contact information, and future value become exclusively owned by GrowthDay. GrowthDay has no obligation to share their names, emails or other identifying information with You once they are a customer of GrowthDay. GrowthDay will not pay you any commissions or Referral Fees on any future transactions with Prospects, or any future value of the Prospects, outside of the Referral Fees for the Offers listed herein.

5. GrowthDay, at its sole discretion, can cancel, reverse, reassign or cause not to be counted or paid any Sold Account or Referral Fee from any Partner based on inappropriate marketing by the Partner or actions by the Partner that are deemed rude, illegal, violent, unforthcoming, untrue, or harassing, or other unprofessional behavior toward GrowthDay or its team or community.

 

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 GrowthDay. If You are not a resident of the United States, GrowthDay may withhold tax (including without limitation VAT) where required to by applicable law. Where GrowthDay is required to withhold tax, GrowthDay 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 GrowthDay account under the name of another person or entity, or under a fictitious name. Partner is not permitted to open a GrowthDay 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 GrowthDay 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 GrowthDay Policies, as determined by GrowthDay in its sole discretion, may result in one or more of the following actions being taken by GrowthDay: (a) termination of Your affiliation with GrowthDay 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 GrowthDay 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 GrowthDay 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 GrowthDay Materials (as defined below) or any GrowthDay 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 GrowthDay 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 GrowthDay), 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. GrowthDay Materials

1.    All GrowthDay Materials will be solely created and provided by GrowthDay unless otherwise agreed to by GrowthDay in writing in advance. GrowthDay will provide Partner with copies of, or access to, GrowthDay Materials. By using the GrowthDay 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 GrowthDay Materials. The GrowthDay Materials are provided “as is” and without warranty of any kind.

2.    Partner may display GrowthDay Materials on its websites solely for the purpose of marketing and promoting GrowthDay and its services during the term of this Agreement, or until such time as GrowthDay may, upon reasonable prior notice, instruct Partner to cease displaying the GrowthDay Materials. Partner may not alter, amend, adapt or translate the GrowthDay Materials without GrowthDay’s prior written consent. Nothing contained in any GrowthDay Materials will in any way be deemed a representation or warranty of GrowthDay. The GrowthDay Materials will at all times be the sole and exclusive property of GrowthDay and no rights of ownership will at any time vest with Partner even in such instances where Partner has been authorized by GrowthDay to make changes or modifications to the GrowthDay Materials.

3.    “GrowthDay Materials” means any marketing or promotional materials relating to GrowthDay or its platform or products, including but not limited to copyrighted content, hypertext links, domain names, icons, buttons, banners, graphic files, images and the GrowthDay Trademarks.

 

4.2. GrowthDay Trademarks

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

2.    “GrowthDay Trademarks” means the trademarks, logos, service marks and trade names of HPX, LLC, whether registered or unregistered, including but not limited to the word mark GrowthDay and the design.

 

4.3. Trademark Usage Guidelines

Partner shall only use and visually present the GrowthDay Trademarks as follows. Partner agrees that Your use of the GrowthDay 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 GrowthDay 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 GrowthDay Trademarks are our exclusive property. All goodwill that results from Your use of the GrowthDay Trademarks will be solely to our benefit. You will not take any action that is at odds with our rights or ownership of the GrowthDay Trademarks.

3.    The GrowthDay Trademarks must be used in a respectful manner. The GrowthDay 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 GrowthDay 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 GrowthDay® mark to advertise GrowthDay in your non-paid advertising. Any time You use the GrowthDay® 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 GrowthDay. Whether Your use of GrowthDay® is confusing will be determined by GrowthDay in GrowthDay’ sole and absolute discretion.

5.    Any time You use the word “GrowthDay” it must be immediately followed by the “Circle R” “®” denoting it as a registered trademark of GrowthDay, 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 GrowthDay, LLC. I am an independent GrowthDay Partner and I receive referral payments from GrowthDay in this role. All opinions expressed herein are my own and are not official statements of GrowthDay or any party affiliated with GrowthDay.

 

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

Notwithstanding Section 4.1, Partner will not:

1.    Use the GrowthDay 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 GrowthDay 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 GrowthDay Trademarks or any variations or misspellings thereof that may be deceptively or confusingly similar to the GrowthDay Trademarks.

4.5. Proprietary Rights of GrowthDay

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

4.6. Audio/Visual Rights of GrowthDay and Appearance Release

In the course of You promoting GrowthDay, you may have the opportunity to appear as a guest presenter or interview subject on GrowthDay websites, mobile applications, Zoom accounts, software, and social media accounts (collectively, the “Platform”) during one or multiple live virtual/online training or coaching broadcasts (the “Events”) for GrowthDays' audience, fans, Prospects and customers. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, You acknowledge and agree as follows:

  • By logging into the Platform, joining a virtual conference invitation from GrowthDay, or attending and speaking on any Events by GrowthDay on its Platform, you are agreeing to appear as a guest and speaker on the Platform and thereby grant consent to GrowthDay to promote, broadcast and record your appearance, voice, likeness, and presentation. You agree that GrowthDay shall be the exclusive owner of all rights, titles, interest, and copyright in the Event, the Event recordings in audio/video format, and any activity on its Platform, including your appearance, your interactions with its audience, and all derivative works of the Event. You hereby grant GrowthDay permission and the irrevocable, royalty-free, transferrable, worldwide right and license to own, use and promote the Event recordings featuring You on its Platform at its sole discretion in whole or in part, for any and all commercial and non-commercial purposes on its Platform or in any media, whether no known or hereafter devised, in perpetuity, without further notice, payment or obligation to You or your heirs, company, representatives, or assigns. You understand you are not compensated for appearing on the Platform, and that the only compensation with GrowthDay is listed herein for Sold Accounts you drive via your unique URL as explained in "Section 2. Referral Fees."

 

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 GrowthDay and Partner, any information related to a GrowthDay customer or other Partner is the Confidential Information of GrowthDay.

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 GrowthDay Partner Program, the GrowthDay services, the GrowthDay Trademarks, and the GrowthDay Materials are provided “as-is”. GrowthDay makes no warranties under this Agreement, and GrowthDay 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, GrowthDay further disclaims all representations and warranties, express or implied, that the GrowthDay services, the GrowthDay Trademarks, or the GrowthDay 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

PLEASE READ CAREFULLY THIS INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER NOTICE: TO THE FULLEST EXTENT PERMITTED BY LAW, THESE TERMS (WHICH TERM IS DEFINED BELOW) CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, REQUIRING YOU TO RESOLVE ANY DISPUTE (AS DEFINED BELOW) BETWEEN YOU AND GROWTHDAY THROUGH FINAL AND BINDING INDIVIDUAL ARBITRATION, INSTEAD OF IN COURT, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, REQUIRING YOU TO FOREGO ALL JURY TRIALS AND ALL CLASS, COLLECTIVE, CONSOLIDATED, AGGREGATE, MASS, AND REPRESENTATIVE PROCEEDINGS, AND ALL OTHER TYPES OF COURT PROCEEDINGS OF ANY AND EVERY KIND, EXCEPT FOR CERTAIN MASS ARBITRATION PROCEEDINGS (SEE BELOW) AND, IN THE U.S., INDIVIDUAL SMALL CLAIMS (SEE BELOW). BY AGREEING TO THESE TERMS, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, CAREFULLY CONSIDERED, AND UNDERSTAND ALL OF THE PROVISIONS OF THE INDIVIDUAL ARBITRATION AGREEMENT AND CLASS ACTION WAIVER PROVISIONS, AND THAT YOU EXPRESSLY AGREE TO BE BOUND THEREBY.

7.1. Limitation of Liability

GrowthDay will have no liability with respect to the GrowthDay Partner Program, the GrowthDay services, the GrowthDay Trademarks, the GrowthDay Materials or GrowthDay’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 GrowthDay’s services, the GrowthDay Trademarks, the GrowthDay Materials or Partner’s participation or inability to participate in the GrowthDay Partner Program, even if GrowthDay has been advised of the possibility of such damages. In any event, GrowthDay’s liability to Partner under this Agreement for any reason will be limited to the Referral Fees paid to Partner by GrowthDay 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 GrowthDay 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 GrowthDay granted by Partner to any third party; (d) Partner’s breach of any term of this Agreement or the GrowthDay 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.

7.4 D‍ISPUTE

In cases of a dispute, Partner agrees to informally and individually contact [email protected] and hold a phone call or zoom call to informally correct the situation in good faith (an "informal resolution or "IR"). Partner must initiate an IR with an email stating their complaint and providing their full name, email, phone, address, and username in GrowthDay, if any. The IR meeting is a condition precedent and requirement that must be fulfilled before commencing arbitration.If the parties do not solve the situation amicably within 60 days, then arbitration becomes an option, per the terms below.

7.5: Binding Individual Arbitration; Arbitration Agreement

This section applies to the fullest extent permitted by applicable law and does not apply wherever disallowed. ANY CONTROVERSY, CLAIM OR DISPUTE OF WHATEVER NATURE BETWEEN YOU AND/OR YOUR RELATED PARTIES, ON THE ONE HAND, AND GROWTHDAY AND/OR ITS RELATED PARTIES, ON THE OTHER, INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO THESE TERMS (OR ANY PRIOR OR SUBSEQUENT VERSIONS, INCLUDING ANY CHANGES TO THESE TERMS), OR THE BREACH THEREOF; THE SALE, PURCHASE OR USE OF GROWTHDAY PRODUCTS, SERVICES OR THIRD-PARTY SERVICES; OR THE USE OF GROWTHDAY WEBSITES OR WEB APPLICATIONS; OR THE COMMERCIAL, ECONOMIC, OR OTHER RELATIONSHIP BETWEEN YOU AND GROWTHDAY AND/OR THE RELATED PARTIES, WHETHER SUCH CLAIM IS BASED ON RIGHTS, PRIVILEGES OR INTERESTS RECOGNIZED BY OR BASED UPON STATUTE, CONTRACT, TORT, COMMON LAW OR OTHERWISE, WHETHER BEFORE THESE TERMS WERE EFFECTIVE OR AFTER TERMINATION, AND/OR WHETHER SUBJECT TO A PURPORTED MASS ARBITRATION OR A CLASS ACTION THAT YOU ARE NOT A CERTIFIED MEMBER OF (“DISPUTE”), AND WHICH IS NOT RESOLVED VIA THE INFORMAL RESOLUTION PROCEDURE SET FORTH ABOVE, SHALL BE SETTLED THROUGH BINDING INDIVIDUAL ARBITRATION, AS DESCRIBED BELOW, EXCEPT AS PROVIDED IN THE MASS ARBITRATION SECTION OF THIS ARBITRATION AGREEMENT OR, IF YOU ARE IN THE U.S., THROUGH AN INDIVIDUAL ACTION IN SMALL CLAIMS COURT IN YOUR COUNTY (OR PARISH) OF RESIDENCE, OR LOS ANGELES, CALIFORNIA.

Arbitration Agreement: YOU UNDERSTAND AND AGREE THAT THE DISPUTE RESOLUTION AGREEMENT IN THIS SECTION OPERATES AS A SEPARATE AND DISTINCT AGREEMENT THAT IS SEVERABLE FROM THE REMAINDER OF THE AGREEMENT AND IS ENFORCEABLE REGARDLESS OF THE ENFORCEABILITY OF ANY OTHER PROVISION OF THE AGREEMENT OR THE AGREEMENT AS A WHOLE. CONSIDERATION FOR THIS INDIVIDUAL ARBITRATION AGREEMENT INCLUDES, WITHOUT LIMITATION, THE PARTIES’ MUTUAL AGREEMENT TO ARBITRATE DISPUTES. YOU FURTHER UNDERSTAND AND AGREE THAT THE UNENFORCEABILITY OF THE AGREEMENT IN WHOLE OR IN PART SHALL NOT SUPPORT A FINDING THAT THE INDIVIDUAL ARBITRATION AGREEMENT IN THIS SECTION 9 IS UNENFORCEABLE.

Except as expressly provided herein, to promote to the fullest extent that is reasonably possible a mutually amicable resolution of Disputes in a timely, efficient, and cost-effective manner, YOU AND GROWTHDAY (INCLUDING ALL RELATED PARTIES OF EACH PARTY) HEREBY EXPRESSLY AGREE THAT EACH PARTY (AS APPLICABLE) IS HEREBY WAIVING ITS RIGHTS TO TRIAL BY JURY OR BY ANY COURT, INCLUDING RIGHT TO APPEAL AND TO CONDUCT FULL DISCOVERY. IN ADDITION, TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AND GROWTHDAY (INCLUDING ALL RELATED PARTIES) HEREBY EXPRESSLY AGREE THAT EACH PARTY (AS APPLICABLE) IS HEREBY EXPRESSLY WAIVING THE RIGHT TO PARTICIPATE IN ANY PURPORTED CLASS, COLLECTIVE, AGGREGATE, MASS, CONSOLIDATED, OR REPRESENTATIVE ACTION OR OTHER PROCEEDING, INCLUDING, WITHOUT LIMITATION, SUCH PROCEEDINGS BROUGHT IN STATE AND FEDERAL COURT AND/OR CLASS ARBITRATION, EXCEPT AS PROVIDED IN THE MASS ARBITRATION SECTION OF THIS ARBITRATION AGREEMENT (BELOW) AND, IN THE U.S. SMALL CLAIMS. UNLESS BOTH YOU AND GROWTHDAY AGREE IN WRITING, EACH PARTY (AND ITS RELATED PARTIES) MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE, AGGREGATE, MASS, CONSOLIDATED, OR REPRESENTATIVE ACTION, ARBITRATION, OR OTHER PROCEEDING, EXCEPT AS PROVIDED IN THE MASS ARBITRATION SECTION OF THIS ARBITRATION AGREEMENT (BELOW) AND, IN THE U.S. SMALL CLAIMS. 

All requests for an IR and all requests for arbitration (and all related actions, filings and materials) which are submitted pursuant to the terms of this section and which are submitted by an attorney, must include a written affirmation by such attorney that the information provided for each individual case is true and correct to the best of the submitting attorney’s knowledge. 

TO THE EXTENT THERE IS MORE THAN ONE DISPUTE BETWEEN THE PARTIES AND/OR RELATED PARTIES, AND ANY OF SUCH DISPUTES ARE NOT ARBITRABLE AS A MATTER OF LAW, THE PARTIES AGREE THAT LITIGATION OF THOSE DISPUTES SHALL BE STAYED PENDING THE OUTCOME OF ANY INDIVIDUAL DISPUTES IN ARBITRATION. In the event the prohibition on class, collective, aggregate, mass and/or representative arbitrations is deemed invalid or unenforceable after exhaustion of all appeals of that issue, then, to the extent that class, collective, aggregate, mass and/or representative claims are asserted, such claims shall be litigated in accordance with the otherwise-applicable terms of this Section 9.

Except for Disputes subject to the terms below ANY AND ALL DISPUTES shall be subject to and shall be settled exclusively by final, binding, individual arbitration in accordance with: (1) in the U.S., by the American Arbitration Association (“AAA”) under the then-prevailing applicable AAA Rules, and any applicable Supplementary Rules, as modified by this section, unless the laws of the state in which you reside expressly require otherwise; or (2) in Canada, the ADR Chambers Arbitration Rules, unless the laws of the state or province in which you reside expressly require otherwise. If AAA or ADR Chambers, as applicable, is unable to serve as an arbitrator organization (for any reason) and the Parties cannot agree on an alternative arbitrator organization, then a court of competent jurisdiction will appoint an arbitrator organization.

Notwithstanding anything contained herein, AAA or ADR Chambers, as applicable, may not administer any multiple claimant or class arbitration except as provided in the Mass Arbitration subsection, as the Parties agree that the arbitration shall be limited to the resolution only of individual claims. If there is a conflict between the AAA Rules or ADR Chambers Rules, as applicable, and the rules set forth in this Section shall govern. The AAA rules and procedures are available online at www.adr.org or by calling 1-800-778-7879 and copies of the ADR Chambers Arbitration Rules may be downloaded at https://adrchambers.com/arbitration/rules/. 

If arbitration of a Dispute is necessary, the Parties agree to the following procedure:

  1. If in the U.S., the moving Party writes a Demand for Arbitration. The demand must be personally signed and include a description of the Dispute, description of the relief that you are seeking, including a detailed calculation of the amount of damages , and a declaration that you completed the Informal Dispute Resolution as detailed in subsection 9.1 above. If you are represented by counsel, your counsel must also personally sign the Demand for Arbitration. The signatures certify (a) under penalty of perjury that the statements made are true and correct, and (b) that the Dispute is (i) not for an improper purpose, frivolous, to harass the other Party and/or brought about to increase the costs of arbitration; (ii) brought in good-faith based on real facts and sound legal arguments that are actionable under current law. You can find copies of a Demand for Arbitration at: https://www.adr.org/Most-Viewed-Forms (“Demand for Arbitration”).
  2. If in Canada, the moving Party write a Notice to Arbitrate. The notice must include a description of the Dispute and the relief sought to be recovered. You can find a sample of a Notice to Arbitrate at: https://adrchambers.com/arbitration/
  3. Send copie(s) of the Demand for Arbitration or Notice to Arbitrate, plus the appropriate filing fee, to:

 

In the U.S.:

Send one copy to:

AAA Case Filing Services 

1101 Laurel Oak Road, 

Suite 100, 

Voorhees, NJ 08043

Or online visit www.adr.org and click on File or Access Your Case and follow directions. If outside the U.S., contact us for procedures at [email protected].

Send one copy of the Demand for Arbitration or Notice to Arbitrate to the other Party at GrowthDay 1300 1st St #368 Napa CA 94559.

Notwithstanding the rules of AAA and ADR Chambers, the following will apply to all arbitration actions:

  • The arbitration will take place: (1) in the U.S., in Napa County, California, except as otherwise required by AAA Rules (e.g. at a location which is reasonably convenient to both Parties with due consideration of both Party’s ability to travel and other pertinent circumstances).
  • The arbitration agreement and the arbitration will be governed by the Federal Arbitration Act (“FAA”) in the U.S. or the appliable provincial or territorial Arbitration Act in Canada. To the extent there is a conflict with California law, the FAA or the provincial or territorial Arbitration Act in Canada prevails.
  • The arbitration will be conducted in English (with appropriate translators as may be necessary).
  • In the U.S., the Federal Rules of Evidence will apply in all cases.
  • In the U.S., the Parties will be entitled to bring motions under Rules 12 and/or 56 of the Federal Rules of Civil Procedure.
  • The Parties will be allotted equal time to present their respective cases, including cross-examinations.
  • The arbitrator(s) is required to issue a written arbitration award setting forth the essential findings and conclusions on which any award is based.
  • The arbitrator(s) will have no authority to award punitive damages, except where an applicable law or statute expressly prohibits the waiver of such damages.
  • The decision of the arbitrator will be final and binding on the Parties and may, if necessary, be reduced to a judgment in a court of law, except that a Party may choose to appeal certain arbitration awards as described below. Any motion or action to confirm, vacate, modify, or otherwise enter judgment on the award shall comply with this section. Further, any Party seeking to enforce an award of an arbitrator(s) shall submit the award under seal to the extent necessary to maintain protections of confidential, proprietary, and trade secret information, and the Parties hereby agree and consent to the filing of such a submission, motion, or order under seal.

 

In addition to the foregoing and notwithstanding the rules of AAA and ADR Chambers, certain procedures will apply depending on the amount in controversy. For Disputes in which the amount in controversy is less than $1,000,000.00 (one million dollars), the following procedures will apply absent mutual agreement of the Parties to the contrary:

  • The arbitration will occur within 180 days from the date on which the arbitrator is appointed and will last no more than five (5) business days.
  • There will be one arbitrator selected from the panel provided by AAA or ADR Chambers (where applicable), using the AAA Rules or the ADR Chambers Arbitration Rules (where applicable) for arbitrator selection.
  • The arbitrator shall institute discovery consistent with the goals of arbitration. Discovery and disclosure of information will be conducted under the rules provided by AAA or ADR Chambers (where applicable) to achieve the usual goals of arbitration, including cost effective and efficient resolution of disputes between Parties, but, in the U.S., in no event shall the Parties be entitled to discovery rights greater than provided by the Federal Rules of Civil Procedure.

 

For Disputes in which the amount in controversy is equal to or exceeds $1,000,000.00, the following procedures will apply absent mutual agreement of the Parties to the contrary:

  • There will be three (3) arbitrators selected from the panel provided by AAA or ADR Chambers (where applicable), using the AAA Rules or the ADR Chambers Arbitration Rules (where applicable) for arbitrator selection.
  • In the U.S., the Parties will be entitled to, and limited by, all discovery rights permitted by the Federal Rules of Civil Procedure.
  • In the U.S., the Parties will be entitled to appeal any arbitration award under AAA Optional Appellate Arbitration Rules. The Parties agree to request oral argument for any appeal filed under the Optional Appellate Arbitration Rules.

 

Additional Procedures for Mass Arbitration. To increase the efficiency of the administration and resolution of Dispute arbitrations, you and GrowthDay agree that in the event that there are 20 or more individual demands or requests for arbitration (each a “Request”) of a similar nature filed against GrowthDay by or with the assistance of the same law firm, group of law firms or other organization(s) (or otherwise in close proximity) the provisions in this Subsection (and, in the U.S., the applicable AAA Mass Arbitration and Mediation Fee Schedule and Supplementary Rules) will apply. Both Parties also understand and agree that by participating in Mass Arbitration, that the resolution of the Dispute may be delayed.

All Parties agree that Requests are of a “similar nature” if they arise out of the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the Parties disagree on the applicability of the Mass Arbitration process, the disagreeing Party shall advise the arbitrating organization (in the U.S., AAA and in Canada, ADR Chambers), and the arbitrating organization shall appoint a sole standing arbitrator to determine the Mass Arbitration process’ applicability ("Administrative Arbitrator"). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the Parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly.

All Parties agree to the following procedures: GrowthDay's counsel and your counsel will each select 5 Requests per side as part of a first stage, which will be filed with and proceed to be handed in individual arbitrations (“First Stage Requests”). Each First Stage Request will be assigned by the Administrative Arbitrator to a different, single, arbitrator. Except for these First Stage Requests, no Requests will be deemed to have been, nor will be filed in arbitration (and, as such, no fees will be assessed for such not-filed Requests). If any of the 10 First Stage Requests are withdrawn before the conclusion of its individual arbitration, another Dispute will be chosen by the Administrative Arbitrator to replace the withdrawn First Stage Request. Upon completion of this first stage, all Parties will initiate a global mediation session for all of the Requests that are not part of the First Stage Requests ("First Stage Remaining Requests"). The global mediation will act as a stay of the arbitration proceedings.  If the First Stage Remaining Requests are not resolved by the global mediation session, the remaining arbitration claims will be filed and resolved in accordance with the following. The Administrative Arbitrator will:

(1) administer the arbitration demands in (a) batches of 25 Requests per batch, if there are 250 or fewer First Stage Remaining Requests, or (b) batches of 250 Requests per batch, if there are more than 250 Requests (plus, to the extent there are less than the 25 or 250, as applicable, Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of case management fees and arbitrator compensation fees due per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award. 

You and GrowthDay agree to cooperate in good faith with the arbitrating organization (in the U.S., AAA and in Canada, ADR Chambers) to implement the Mass Arbitration approach including the payment of single case management fees and arbitrator compensation for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings; and (3) meetings between each of the Parties’ counsel to discuss modification to procedures. 

This Mass Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as set forth in this section.

In the U.S., AAA Rules govern the payment of arbitration fees. Notwithstanding the forgoing, both you, we (and, if being represented, both of our attorney(s)) agree to cooperate in good faith to take reasonable measures to reduce the costs and fees of arbitration, so that the process is cost-effective for all Parties involved. This may include collaborating with AAA to decrease AAA’s fees. In addition, you and we agree that if the Administrative Arbitrator finds that either your or our claims, counterclaims and/or appeals are brought for an improper purpose and/or are frivolous, the Administrative Arbitrator will award to the other Party the costs and expenses (including, without limitation, any and all charges by the Administrative Arbitrator), and attorneys’ fees incurred by the other Party.  

8. General provisions

8.1. Force Majeure

GrowthDay 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, blockages, embargoes, riots, pandemics, quaranteens, shutdowns affecting any area of GrowthDay business, hacks, 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 GrowthDay 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 [email protected]; (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 GrowthDay at 221 Ponce De Leon Avenue, 5th Floor, San Juan, PR 00917, 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 GrowthDay Policies listed on GrowthDay.com/terms or its Platform, 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 GrowthDay 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. GrowthDay 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 GrowthDay’s prior written consent, to be given or withheld in GrowthDay’s sole discretion.

8.8. Applicable Laws

This Agreement will be governed by and interpreted in accordance with the laws of the unincorporated territory of Puerto Rico, 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 Puerto Rico 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

GrowthDay 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 GrowthDay does not use Partner’s Confidential Information in so doing.

8.10. Modifications to this Agreement

GrowthDay may modify this Agreement (including any GrowthDay Policies) at any time by posting a revised version on the GrowthDay 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 GrowthDay 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 GrowthDay under this Agreement and under applicable law, GrowthDay 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 GrowthDay 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.

 

 

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