Toddy Associates Operating Agreement

1. Enrollment
   To start your enrollment process, you must submit a completed Toddy Associates Network application. Toddy will evaluate your application in good faith. We may reject your application if we determine (in our sole discretion) that you or your site is unsuitable for the Program for any reason, including, but not limited to past fraudulent behavior, or inclusion of website content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing, or racially, ethnically, or otherwise objectionable. If we reject your application, you are welcome to reapply to the Program at any time.
   
   
2. Relationship
   If, at any time, we discover that you are using your Toddy Associates relationship with us for any reason other than that of the Toddy Associates, your relationship with us will be immediately terminated and any commissions or sub-commissions earned as a result of the transaction or transactions that gave rise to said termination shall immediately be disallowed or charged back.
   
   
3. Marketing of Toddy Associates Network
   As a Toddy Associate, we will make available to you a variety of graphics, product images, banners, and textual links (the "Links"), which, subject to the terms and conditions hereof, you may display as often and in as many areas on your website as you desire or include in emails that you send. Note that all of your Links will be traceable to your unique ID number. You also may send Links via email to individuals that are known to you, or to individuals who have opted-in to industry recognized email groups requesting information related to coffee and tea products and related products and services. The Links will serve to identify you as a member of the Program and will establish a link from you to us (so you'll receive proper credit for purchases). In utilizing the Links, you agree that you will cooperate fully with us in order to establish and maintain such Links. You also agree that you will display in your site only those graphic or textual images that are provided by us, and you will substitute such images with any new images provided by us from time to time throughout the term of this Agreement. A Program site shall display such graphic and/or textual images prominently in relevant sections and in a manner consistent with our then-current policies, including, but not limited to our policies regarding image resolution and proprietary notices. All Links may be modified and/or expanded from time to time throughout the term of this Agreement pursuant to the mutual agreement of the parties hereto. Each Link connecting users of your site to our site will in no way alter the look, feel, or functionality of our site. You may not post Toddy product prices.
   
   
4. Toddy Responsibilities
   Toddy will be responsible for providing all information necessary to allow you to make appropriate Links from your site to our site, and from emails you send to Link receivers to ToddyCafe.com. We will be solely responsible for processing every order placed by a customer following a special Link from your site or email, and for tracking the volume and amount of sales generated by you, your emails and your site, and for providing information regarding sales statistics via ToddyCafe.com. Cookies must be turned on and valid at all times in order for your referrals to be tracked to your unique ID number. We are not responsible for tracking or tracing orders made by customers who do not have their cookies turned on and valid at all times (a "traceable Link"). We will be responsible for products, order entry, payment processing, shipping, cancellations, returns, and related customer service.
   
   
5. Toddy Associates Responsibilities
   
   1. If you qualify and agree to participate as a Toddy Associate, you shall display Links prominently throughout your site as you see fit.
   2. You will be entitled to earn commission and sub-commission payments for customer sales as set forth in Sections 7 and 8 of the Agreement.
   3. You will not read, intercept, record, redirect, interpret, or fill in the contents of any electronic form or other materials submitted to Toddy by any person or entity.
   4. You will not in any way modify, redirect, suppress, or substitute the operation of any button, link, or other interactive feature of ToddyCafe.com or any sites owned, operated or marketed by Toddy.
   5. You will not take any action that could reasonably cause any confusion to the user as to which website transactions or actions are occurring.
   6. We have the right in our sole discretion to monitor your site at any time and from time to time to determine if you are in compliance with the terms of this Agreement.
   
   
6. Recruitment of Toddy Associates
   You may refer a third-party individual to participate in the Toddy Associates Network. You may sign-up immediate family members as recruits to Toddy Associates. Your recruit must enter your unique Toddy Associates ID number (when they register as a Toddy Associate) to be noted as your recruit. The status of Toddy Associates cannot be instated at any time after initial sign-up. You do not have any rights to obtain any personal information about your recruited Toddy Associate. You are not limited as to the number of Toddy Associates that you can recruit and be compensated for. We will pay you a flat sub-commission of 5% for all completed sales arising out of transactions directly linked to the Toddy Associate that you were responsible for recruiting. Toddy's payment of these fees is subject to the same exceptions as commission fees (see Section 7 and 8).
   
   
7. Commission & Sub-Commission Payment Determination
   Only products that we choose to offer through our website that are (a) sold by Toddy, (b) purchased by users linking to our site from you (as an approved Toddy Associate) pursuant to a traceable Link, (c) delivered to a customer, and (d) for which we have received full payment will qualify for a commission payment or sub-commission (each, a "Qualifying Purchase") less taxes, duties, shipping and handling, discounts and/or promotions, gift-wrapping charges, amounts returned for credit card fraud, bad debts or for returned goods. If, at any time, the amount charged back to you exceeds the amount due to you, you will be required to pay us the difference.
   
   
8. Commissions & Sub-Commission Payments
   When the total commission and/or sub-commission payment(s) due to you (see below) exceeds $25 USD at the end of any calendar month, you will be paid by a Toddy check for the applicable commission and sub-commission (less any taxes required to be withheld under applicable law or any charge-backs to your account). Such checks will be sent approximately fifteen (15) days after the end of each calendar month and will be paid in United States dollars only. Your first check will be issued approximately 45 days after the end of the first month in which you have accumulated $25 in commissions. If we determine, in our sole discretion, that you have breached this Agreement, we may (without limiting any other rights or remedies available to us) withhold any fees otherwise payable to you under this Agreement. As a condition to payment of a commission or sub-commission, you must will provide Toddy information as is reasonably necessary for Toddy to process payments to you in accordance with applicable laws and regulations. This includes, but is not limited to your Social Security number or Tax identification number (for businesses located in the United States).
   
   Toddy Associates' commissions and sub-commissions are as follows:
   
   Compensation Overview: Our compensation plan is designed to offer you maximum reward for your contribution to Toddy's success. We want you to grow with us. Remember, commissions and sub-commissions represent pure profits. Toddy will handle all aspects of the sale, including order fulfillment, shipping, and customer service.
   
   Lifetime Commissions^*: You will be rewarded for all qualified purchases made by your referrals during the life of the program. You'll even earn a commission if your qualified referrals or your qualified recruits' referrals buy directly from ToddyCafe.com.
   
   Our compensation plan for commissions is cumulative, and includes the following pay levels:
   
   • 20%- 0-$500 per calendar month
   • 22%- $501-1,500 per calendar month
   • 23%- $1,501-3,500 per calendar month
   • 24%- $3,001-4,500 per calendar month
   • 25%- $4,501-9,500 per calendar month
   • 30%- $9,501 or more per calendar month
   
   Lifetime Sub-Commissions: You will be rewarded for recruiting new Toddy Associates. You will receive a 5% sub-commission on all qualified purchases made by your recruits' referrals during the life of the program. You'll even earn a sub-commission if your qualified recruits' referrals buy directly from ToddyCafe.com.
   
   Sub-commissions are based on a 5% flat rate only, and are figured separately from commissions.
   
   
9. Reports of Sales
   During the application process, you will have the opportunity to register an Email and Password (access information is the same for all ToddyCafe.com services) and, once a member of Toddy Associates, will have the ability to enter a password-protected section at ToddyCafe.com to review your sales data 24 hours a day, seven days a week.
   
   
10. Policies and Pricing
    Customers who buy products at ToddyCafe.com through the Toddy Associates program will be deemed to be customers of Toddy. Accordingly, all of our rules, policies, and operating procedures concerning customer orders, customer service, and Toddy product sales will apply to those customers. We may change our policies and operating procedures at any time.
    
    
11. Publicity
    For purposes of communicating with the news media or any other major public organization, you shall not create, publish, distribute, or permit any written material that makes reference to us without first submitting such material to us and receiving our prior written consent.
    
    
12. Licenses and Use of the Toddy Logos and Trademarks
    
    1. We grant you a non-exclusive, non-transferable, revocable right to (i) access our site through the links solely in accordance with the terms of this agreement and (ii) solely in connection with such links, to use the Toddy name, Toddy trademark, and logo similar identifying material relating to us (but only in the form(s) that they appear as provided) collectively, the licensed materials, for the sole purpose of promoting Toddy products on your site, through email or through an appropriate advertising campaign. You may not alter, modify, or change the licensed materials in any way. You are only entitled to use the licensed materials to the extent that you are a member in good standing of the Toddy Associates program.
    2. You shall not make any specific use of any licensed materials for purposes other than promoting Toddy products on your site for Toddy, without first submitting a sample of such to us and obtaining the prior written consent of Toddy. You agree not to use the licensed materials in any manner that is disparaging or that otherwise portrays Toddy in a negative light. We reserve all of our rights in the licensed materials and of our other proprietary rights. We may revoke your license immediately, by giving you written notice.
    3. You grant to us a non-exclusive license to utilize your name(s), titles, and logos, as the same may be amended from time to time, to advertise, market, promote, and publicize in any manner our rights hereunder; provided, however, that we shall not be required to so advertise, market, promote, or publicize. This license shall terminate upon the termination of this Agreement.
    
    
13. Obligations
    
    1. You will be solely responsible for the development, operation, and maintenance of your site and for all materials that appear on or within the site. Such responsibilities include, but are not limited to, the technical operation of your site and all related equipment; creating and posting product reviews, descriptions, and references on your site and linking those descriptions to our site; the accuracy and propriety of materials posted on your site. Your site shall not (i) violate or infringe upon the rights of any third party, (ii) be libelous, (iii) advocate or promote sexually explicit material, (iv) not advocate or promote violence, (v) not promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age, or (vi) not otherwise be illegal.
    2. We disclaim all liability for all such matters. Further, you will indemnify and hold us harmless from all claims, damages, and expenses (including, without limitation, attorneys' fees) relating to the development, operation, maintenance, and contents of your site.
    
    
14. Term of the Agreement
    The term of this Agreement will begin upon our acceptance of you in the Toddy Associates Network, and will end when terminated by either party. Either you or Toddy may terminate this Agreement at any time, with or without cause, by giving the other party notice of termination by email (the email address provided by you upon registration). You are only eligible to earn commission and sub-commission payment(s) on sales/purchases occurring during the term, and commission and sub-commission payment(s) earned through the date of termination will remain payable only if the related Toddy orders are not canceled or returned. We may withhold your final payment for a reasonable time to ensure that the correct amount is paid.
    
    
15. Modification
    We may modify any of the terms and conditions contained in this Agreement at any time at our sole discretion. You will be notified by email. Modifications may include, but are not limited to, changes in the scope of available commission or sub-commission payment(s) or the payment program in general, payment schedules, payment procedures, and Toddy Associates Network rules. If any modification is unacceptable to you, your only recourse is to terminate this Agreement. Your continued participation in the Program following our posting of a change notice or new agreement on our site will constitute binding acceptance of the change.
    
    
16. Relationship of Parties
    You and Toddy are independent contractors, and nothing in this Agreement will create or creates any partnership, joint venture, agency, franchise, sales representative, strategic alliance or employment relationship between the parties. You will not and do not have authority to make or accept any offers or representations on our behalf. You will not make any statement, whether on your site, by email or otherwise, that reasonably would contradict anything in this section.
    
    
17. Disclaimers
    We make no express or implied warranties or representations with respect to the Toddy Associates Network or any Toddy products sold through the Program (including, without limitation, warranties of fitness, merchantability, non-infringement, or any implied warranties arising out of course of performance, dealing, or trade usage). In addition, we make no representation that the operation of our site will be uninterrupted or error free, and we will not be liable for the consequences of any interruptions or errors. As an approved Toddy Associate, you represent that the primary focus of your site is to transact business within the United States, unless prior approval is gained from Toddy.
    
    
18. Representations and Warranties
    You hereby represent and warrant to us as follows:
    1. This Agreement has been duly and validly executed and delivered by you and constitutes your legal, valid, and binding obligation, enforceable against you in accordance with its terms.
    2. The execution, delivery, and performance by you of this Agreement and the consummation by you of the transactions contemplated hereby will not, with or without the giving of notice, the lapse of time, or both, conflict with or violate (i) any provision of law, rule, or regulation to which you are subject, (ii) any order, judgment, or decree applicable to you or binding upon your assets or properties, (iii) any provision of your by-laws or certificate of incorporation, or (iv) any agreement or other instrument applicable to you or binding upon your assets or properties.
    3. No consent, approval, or authorization of, or exemption by, or filing with, any governmental authority or any third party is required to be obtained or made by you in connection with the execution, delivery, and performance of this Agreement or the taking by you of any other action contemplated hereby.
    4. There is no pending or, to the best of your knowledge, threatened claim, action, or proceeding against you, or any affiliate of yours, with respect to the execution, delivery, or consummation of this Agreement, or with respect to your trademarks, and, to the best of your knowledge, there is no basis for any such claim, action, or proceeding.
    
    
19. Confidentiality
    You agree that all Toddy financial information and business practices, including but not limited to customer lists, commissions and sub-commission percentages, and pricing and sales information, concerning Toddy shall remain strictly confidential and secret and shall not be utilized, directly or indirectly, by you for your own business purposes or for any other purpose except and solely to the extent that any such information is generally known or available to the public through a source or sources other than you.
    
    
20. Limitation of Liability
    We will not be liable for indirect, special, or consequential damages, or any loss of revenue, profits or data arising in connection with this Agreement or the Toddy Associates Network, even if we have been advised of the possibility of such damages. Our aggregate liability arising with respect to this Agreement and the Toddy Associates Network will not exceed the total commissions and sub-commission fees paid or payable to you under this Agreement.
    
    
21. Indemnification
    You hereby agree to indemnify and hold harmless Toddy and its subsidiaries and affiliates, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as Losses) insofar as such Losses (or actions in respect thereof) arise out of or are based on (i) any claim that our use of Toddy infringes on any trademark, trade name, service mark, copyright, license, intellectual property, or other proprietary right of any third party, (ii) any misrepresentation of a representation or warranty or breach of a covenant and agreement made by you herein, or (iii) any claim related to your site, including, without limitation, content therein not attributable to us.
    
    
22. Independent Investigation
    You acknowledge that you have read this agreement and agree to all of its terms and conditions. You understand that Toddy may at any time (directly or indirectly) solicit customer referrals on terms that may differ from those contained in this Agreement or operate websites that are similar to or compete with the marketplace. You have independently evaluated the desirability of participating in the Toddy Associates Network and are not relying on any representation, guarantee or statement other than as set forth in this Agreement.
    
    
23. Governing Law
    The laws of the United States and the State of Texas will govern this Agreement, without reference to rules governing choice of laws. Any action relating to this Agreement must be brought in the federal or state courts located in Harris County, Texas, and you irrevocably consent to the jurisdiction of such courts. You may not assign this Agreement, by operation of law or otherwise, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns. Our failure to enforce your strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such a provision or any other provision of this Agreement.