UNDER THE CANOPY AFFILIATE PROGRAM AGREEMENT

This Affiliate Agreement (the “Agreement”) is effective as of the Effective Date (as defined herein) by and between Portico Brands, LLC, a Delaware limited liability company, with offices at 156 Fifth Avenue, 10th Floor, New York, New York 10010 d/b/a “Under the Canopy” (the “Brand” or “Under the Canopy”) and the affiliate identified on the last page (“Affiliate”).  Brand and Affiliate are each a “Party” and together the “Parties”.

The Parties agree as follows:

Definitions:

(a)   “IP” means intellectual property, including trademarks, trade names, trade dress, service marks, trade secrets, copyrights, domain names, patents, and rights of publicity.  

(b)   “Laws” means laws, rules, regulations, court orders, legal processes, and administrative edicts, advisories, and orders.

(c)    “Products” means products sold on Under the Canopy’s e-commerce website www.underthecanopy.com.

1.     Affiliate Program.  Affiliate’s participation will be on a non-exclusive basis. Accordingly, Affiliate is free to work with other affiliate programs, and Brand is free to engage other affiliates.

2.     Services. Affiliate shall endeavor to increase awareness of the “Under the Canopy” brand and shall promote the Products through social media (the “Services”).  Affiliate shall perform the Services in consultation with Brand and Affiliate’s Services shall be consistent with Brand’s brand-messaging for the Under the Canopy brand.  Affiliate will be furnished with link which Affiliate’s social media followers can use to purchase the Products.  Affiliate grants Brand the non-exclusive right to use Affiliate’s name and image in connection with this Agreement, and Brand may re-post Affiliate’s posts on websites and social media accounts owned or operated by Brand or its designees.

3.     Term. The Term will be for 6 months, commencing on the Effective Date.  The Term will automatically renew, on the last day of the then-current Term, for successive 6-month periods, until terminated. Brand may terminate this Agreement immediately upon written notice to Affiliate. Affiliate may terminate this Agreement upon 10 days’ written notice to Brand.  

4.     Compensation. In consideration for the Services, Affiliate shall be entitled to five percent (5%) of the Retail Sales (as defined herein) of Products purchased using the Affiliate’s unique affiliate code (the “Commission”). (“Retail Sales” means the retail sales price actually paid by customers (and actually received by Brand) for Products, less (i) sales taxes and other similar taxes, (ii) credit card charges and fees, (iii) any adjustments for returns, (iv) shipping-related charges, and (v) other legitimate deductions or chargebacks.) If there is any disagreement, Brand will make the final determination, in good faith, regarding the Retail Sales basis and the Commission earned and owed to Affiliate.  Commissions will be paid to Affiliate, approximately 30 days following the end of each calendar month in which they were earned, via electronic funds transfer to the Affiliate’s account held at the third-party affiliate manager (e.g., Refersion) used by Brand.  The Affiliate will not be entitled to any compensation other than its Commissions.

5.     Relationship of the parties.  Affiliate is an independent contractor, and the Parties will not be deemed to be employer/employee, partners, or agent/principal, and nothing herein will create any joint venture, franchise, or sales representative relationship between the Parties.  Affiliate has no authority to bind Brand in any way, and Affiliate shall not represent that it has any such authority.

6.     Trademarks, Ownership.  The good reputation and goodwill associated with the Brand and the Brand's trademarks and other intellectual property belong exclusively to Brand, and any goodwill arising from Affiliate’s use of such is exclusively for the benefit of Brand.  Affiliate will not acquire, and shall not claim any title in or to, Brand’s IP, or the goodwill associated therewith. Affiliate shall not at any time: (i) challenge or act to impair Brand's right, title, or interest in any of its IP; or (ii) attempt, at any time, to register any trademarks or other IP that is confusingly similar to Brand’s IP.  Affiliate acknowledges and agrees that any violation of this provision shall result in the automatic assignment of any such applications, registrations, or other rights to Brand, at Affiliate's sole expense, and Affiliate agrees to sign any documents requested by Brand to effect such transfer. Any materials made, developed, or used by Affiliate pursuant to this Agreement will be deemed works made for hire for Brand, and Brand shall own all right, title, and interest in the IP therein.  If for any reason Brand’s ownership of the IP does not arise upon its creation, Affiliate hereby irrevocably assigns to Brand all right, title, and interest in and to the IP in any such materials. Affiliate shall execute any further documents as may be required to affect such assignment(s). Affiliate shall cooperate with Brand in protecting Brand’s IP.  

7.     Representations and Warranties. Affiliate represents and warrants that: (i) Affiliate is at least 18 years of age and has the authority to enter into this Agreement and perform the Services; (ii) Affiliate is not party to any agreements with third parties that would conflict with  Affiliate’s performance of the Services,  (iii) Affiliate is the exclusive owner of any content (other than Brand content) used by Affiliate pursuant to this Agreement and that such content will not infringe upon a third party’s IP,  (iv)  Affiliate's performance of the Services will not violate the Law,  (v) Affiliate shall not make any disparaging statements about Brand, or its employees, officers, or personnel; (vi) Affiliate shall not promote Brand products via any website or social media platform, which, in Brand’s reasonable opinion, would be considered obscene, discriminatory, offensive, or in violation of the Law.  

8.     Release and Indemnity.  Affiliate shall indemnify and hold Brand, its affiliates and their respective directors, officers, agents, and employees harmless from and against all claims, including court costs and attorneys' fees, arising out of or based upon (i) Affiliate’s performance of the Services, (ii) any claim that the Services or IP related thereto infringes upon or misappropriates a third party’s IP; and (iii) Affiliate’s breach or purported breach of this Agreement.

9.     Limitation on Liabilities. IN NO EVENT WILL UNDER THE CANOPY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, COVER, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER OR NOT FORESEEABLE AND EVEN IF BRAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BRAND MAKES NO WARRANTIES REGARDING AFFILIATE'S PARTICIPATION IN THE PROGRAM. BRAND DISCLAIMS ANY RESPONSIBILITY FOR THE SECURITY OF AFFILIATE'S ACCOUNTS OR ITS CONTENTS.  ANY SERVICES PROVIDED BY BRAND ARE ON AN AS-IS BASIS. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL THE AGGREGATE LIABILITY OF BRAND (TO THE EXTENT NOT DISCLAIMED HEREUNDER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF COMMISSIONS PAID OR PAYABLE BY BRAND TO AFFILIATE OVER THE TERM. 

10.  Confidentiality.  Affiliate’s participation in this program may entail Affiliate learning confidential information belonging to or about Brand (“Confidential Information”).  Affiliate shall not disclose the Confidential Information to any third party or otherwise use such Confidential Information for Affiliate’s benefit except as necessary to perform the Services.  If Affiliate is required to disclose any Confidential Information by Law, then Affiliate shall notify Brand and cooperate with Brand’s efforts to limit or prevent such disclosure. The terms of this Agreement are Confidential Information.  Affiliate’s obligations pursuant to this section shall survive expiration or termination hereof as will such other obligations that expressly or by their nature should survive expiration or termination.

11.  Disclosures and compliance with FTC Guidelines. The Services and other conduct of Affiliate pursuant hereto must comply with (i) all Laws, including those addressing data privacy (e.g., CCPA, COPPA, and GDPR), spam emailing, gambling, fraud, sweepstakes, harassment, and pyramid schemes, (ii) current rules and guidance promulgated by the FTC, and (iii) all rules and policies of the applicable social network. Any posts by Affiliate must disclose Affiliate’s material connection to Brand, including the fact that Affiliate is being compensated by Brand.  All disclosures shall use simple language and be in a clear space and near any statements made regarding the Brand products.  Any factual statements made by Affiliate about the Products must be true and verifiable.   Any non-factual statements made by Affiliate about the Products shall reflect Affiliate’s honest opinion. 

12.  Governing Law and Arbitration.  This Agreement shall be construed in accordance with and governed by the laws of the State of New York.  Any controversy or claim arising out of or relating to this Agreement shall be determined by arbitration to be held in New York City, New York, in accordance with the American Arbitration Association Rules and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.

13.  Miscellaneous.  This Agreement constitutes the complete understanding between the parties with respect to the subject matter hereof, supersedes all prior oral or written understandings and agreements relating hereto, and shall not be amended or terminated except as provided herein or by a written instrument signed by both parties. The term “including” (or variants thereof e.g., “includes”) will be construed in each instance to mean “including, but not limited to”.  If any provision hereof, in whole or in part, is held to be illegal, invalid, or unenforceable then that provision or part shall be deemed not to form part of this Agreement and the enforceability and validity of the remainder of this Agreement shall not be affected.  The parties shall in good faith attempt to modify any invalidated provision or part to carry out the parties' stated intentions. Affiliate may not assign this Agreement or Affiliate’s right hereunder.

WHEN SUBMITTING APPLICATION, AFFILIATE AGREES THAT IT HAS READ AND UNDERSTANDS ALL THE TERMS AND CONDITIONS HEREOF, THAT AFFILIATE AGREES TO BE BOUND BY THEM.

Confidentiality.  Affiliate’s participation in this program may entail Affiliate learning confidential information belonging to or about Brand (“Confidential Information”).  Affiliate shall not disclose the Confidential Information to any third party or otherwise use such Confidential Information for Affiliate’s benefit except as necessary to perform the Services.  If Affiliate is required to disclose any Confidential Information by Law, then Affiliate shall notify Brand and cooperate with Brand’s efforts to limit or prevent such disclosure. The terms of this Agreement are Confidential Information.  Affiliate’s obligations pursuant to this section shall survive expiration or termination hereof as will such other obligations that expressly or by their nature should survive expiration or termination.