AMBASSADOR PROGRAM AGREEMENT

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Bethanie Fields
6 years ago
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1 AMBASSADOR PROGRAM AGREEMENT This Ambassador Program Agreement (this Agreement ) is by and between Cambly Inc., a Delaware corporation (the Company ), and [Name], and individual with its principal place of business located at [Address] ( Ambassador ), and is effective as of [Date] (the Effective Date ). WHEREAS, Company desires Ambassador to promote the Service from time to time, and Ambassador desires to so promote the Service. NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Definitions. Account means a user account for the Service. App means the smart phone application developed by Company and distributed through the Apple Computer App Store and Google Play as of the Effective Date. Promotional means an sent to one or more addresses that promotes registration for and participation in the Service and includes a Promotion Code. Promotion Code means the alphanumeric code(s) assigned by Company to Ambassador from time to time to track Qualified Referrals referred to by Ambassador. A Qualified Referral occurs when (i) an individual unaffiliated with Ambassador and who has not previously created an Account registers for an Account using an address to which a Promotional was sent and a Promotion Code from such Promotional ; (ii) such individual completely fills out, publishes and activates a User profile within the Service associated with such Account; and (iii) Company does not terminate such Account within fourteen (14) days of such User profile activation, which Company may do in its sole discretion. Revenue means revenue actually collected (and not refunded) by the Company from a Qualified Referral s first purchase on Cambly within 3 months following such User s creation of the Account. Service means the Company s language tutoring platform available through the Site or App. Site means the Company website located at User means an individual who registers for an Account through the Site or App. 2. Promotional s. From time to time, the parties may agree in writing that Ambassador shall send a Promotional , subject to written approval by Company of the content, number of recipients, attributes of the recipients (such as geographic location, area of expertise or membership in a social network), date and time it is to be sent and all other aspects of the Promotional and the transmission thereof. Ambassador shall not send any Promotional without the express prior written consent of an authorized Company representative, and shall not send any Promotional other than in full compliance with the scope of the written approval provided by Company as described in the foregoing sentence. Ambassador shall provide to Company the complete recipient list for each Promotional hereunder prior to sending such Promotional . Company acknowledges that Ambassador makes no representation or warranty regarding the number of new Account registrations that shall result from Ambassador s efforts hereunder. Ambassador acknowledges that Company makes no representation or warranty regarding the number of 1

2 Promotional s that it shall authorize, how many new Account registrations shall lead to Qualified Referrals or the Commissions (as defined below) that Ambassador shall earn hereunder. 3. Compensation. Company shall track all Qualified Referrals hereunder through both use of the recipient lists provided by Ambassador as specified under Section 2 and the use of Promotion Codes. Company shall pay Ambassador 10% of all Revenue for each Qualified Referral hereunder (the Commission ). Except as set forth under Section 6, the Company shall only issue Ambassador Commission when accrued but unpaid Commissions hereunder reach at least $20.00 in the aggregate. Subject to the foregoing, Company shall pay to Ambassador all accrued but unpaid Commissions on a monthly basis, with each payment made within thirty (30) days following the end of each calendar month. To the extent Ambassador receives a Commission payment based on amounts which are subsequently refunded to the applicable Qualified Referral, a subsequent Commission payment to Ambassador shall be reduced by a corresponding amount. Ambassador agrees that the maximum aggregate amount of Commissions that Ambassador may earn hereunder is limited to $10,000 (the Cap ), and under no circumstances shall Ambassador be entitled to any compensation hereunder in excess of the Cap. All Commissions shall be based solely on Company s calculations. Ambassador will not be compensated hereunder for any Account registration which Company is unable to confirm as a Qualified Referral as described herein. All federal, state and/or local taxes relating to payments made to Ambassador under this Agreement are Ambassador s sole responsibility. Ambassador acknowledges that Ambassador must have a PayPal account in order to receive payments hereunder. All payments shall be made in U.S. Dollars via Ambassador s PayPal account listed on the signature page hereto, or as otherwise agreed upon in writing by Company and Ambassador. 4. Representations and Warranties of Ambassador. Ambassador represents and warrants that: (a) it will not make any statement, promise, representation or warranty, whether written or oral, with respect to the App, Site or Service in connection with any activities relating to this Agreement that is not authorized in writing by the Company; (b) it will conduct itself at all times in a manner that reflects favorably upon the reputation, quality, goodwill and credibility of Company; (c) it shall not offer any compensation or incentive of any kind to any person with respect to registration for an Account or use of the Service; (d) it shall not, nor shall it authorize, encourage or permit any third party to, take any action that would or could artificially or fraudulently increase the number of new Account registrations, including without limitation through use of scripts or bots or repeated manual Account registrations; (e) it has all necessary rights, licenses, consents and permissions with respect to the Database and the addresses to which it sends Promotional s to undertake the activities contemplated by the parties under this Agreement; (f) it will comply with all applicable laws, rules and regulations in connection with activities relating to this Agreement, including but not limited to the CAN-SPAM Act or any other laws relating to commercial Term of the Agreement. This Agreement is effective as of the Effective Date, and will continue until (i) the one (1) year anniversary thereof or (ii) the aggregate Commission earned by Referral Partner hereunder reaching the Cap, whichever comes first, unless earlier terminated as provided herein. Either party may terminate this Agreement at any time, for any reason or for no reason, immediately upon written notice to the other party. 6. Termination. In the event of any expiration or termination of this Agreement, Ambassador shall immediately cease all activities under this Agreement. Ambassador shall be entitled to receive Commissions that have accrued but that remain unpaid prior to the effective date of termination, and Company shall provide such payment within thirty (30) days of such termination. Ambassador agrees that in the event of termination, Company shall not under any circumstances be liable by reason of such termination, for damages or otherwise, to the extent permitted by applicable law. In consideration of its entering into this Agreement, Ambassador waives and relinquishes any rights or claims under any statutes or at common law that would or might arise out of a termination of this Agreement by Company or refusal by Company to renew or extend the term of this Agreement 7. Confidentiality. 2

3 Confidential Information means any information supplied by or received from one party (the Disclosing Party ) to or by the other (the Receiving Party ), that would be reasonably construed to be confidential, whether written, oral or electronic. With respect to Company, Confidential Information shall include all business strategies and product plans of Company. Confidential Information does not include: (a) information which at the time of receipt by the Receiving Party was already published or otherwise generally available to the public; (b) information which after receipt by the Receiving Party is published or becomes generally available to the public other than through default of the Receiving Party; (c) information which the Receiving Party can demonstrate by competent evidence was rightfully in its possession at the time of disclosure; (d) information which becomes known independently to the Receiving Party or which was rightfully acquired from any third party or person who did not acquire it under a pledge of secrecy; or, (e) information which is independently developed by the Receiving Party's employee(s) without use of the Disclosing Party's Confidential Information. With regard to Confidential Information disclosed hereunder, the Receiving Party shall: (a) treat all such Confidential Information as strictly confidential; (b) not disclose any Confidential Information in any way to any third party or person without the consent of the Disclosing Party nor to any employee of the Receiving Party except as is necessary in the performance of obligation under this Agreement; (c) ensure that all those of its officers, employees and/or agents to whom the Confidential Information is disclosed are made aware of the confidentiality of the same and bound in writing to adhere to confidentiality provisions no less restrictive than this Agreement; and (d) not use any Confidential Information in any way except in fulfillment of obligations under this Agreement. Without limiting the foregoing, the Receiving Party shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event with less than reasonable care, to prevent the disclosure of the Disclosing Party s Confidential Information. A disclosure by the Receiving Party that is required by law or legal process shall not be deemed a breach of this Section 5, provided that the Receiving Party promptly provides notice to the Disclosing Party of such requirement so the disclosing party may seek appropriate protective orders. 8. Indemnification. Ambassador agrees to indemnify and hold Company and its officers, directors and employees (each, an Indemnified Party ) harmless from and against any and all claims, actions, demands, suits, judgments, damages, liabilities, losses, costs and expenses (including but not limited to reasonable attorneys fees) that arise out of or relate to the Ambassador s actual or alleged (i) willful acts, omissions, negligence or misconduct, or (ii) breach of any provision of this Agreement. 9. Limitations of Liability. WITH THE EXCEPTION OF LIABILITY ARISING IN CONNECTION WITH SECTION 7 OR A BREACH OF SECTION 2 OR 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES OF ANY NATURE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF BUSINESS, OR ANTICIPATORY PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY AND/OR LIKELIHOOD OF SUCH DAMAGES. 10. Disputes. If any claim or controversy arises out of this Agreement, the parties shall first make a good faith attempt to resolve the matter through their management. In the event such good faith negotiation fails to settle any dispute within thirty (30) days from notice of such dispute, the claim or controversy shall be settled by binding arbitration by one arbitrator, conducted in accordance with the Rules Arbitration of the International Chamber of Commerce. The decision of the arbitrator is final and shall be binding on both parties. The site of arbitration shall be San Francisco County, California. The English language shall be used in the arbitration proceedings, and all documents, exhibits and other evidence shall also be in the English language. The decision of the arbitrator may be entered as a final judgment in any court of competent jurisdiction. The arbitrator shall not be empowered to award damages in excess of, and/or in addition to, actual damages, including punitive damages, and the arbitrator shall deliver a reasoned opinion in connection with his/her decision. Notwithstanding the foregoing, either party may seek injunctive or other equitable relief in any court of competent jurisdiction. 3

4 11. Independent Contractor. a. Ambassador is not authorized to commit Company to any obligations. Nothing in this Agreement creates a distributorship, agency, franchise, joint venture, partnership, or employer-employee relationship. Ambassador and Company agree that they are independent contractors. Ambassador shall not misrepresent or embellish the relationship between Company and Ambassador (including by expressing or implying that Company supports, sponsors, endorses, or contributes to Ambassador or other causes), or express or imply any relationship or affiliation between Company and Ambassador or any other person or entity except as expressly permitted by this Ambassador Program Agreement. Ambassador has no authority to make or accept any offers or representations on the Company s behalf. Ambassador shall not make any statement, whether on Ambassador s website, Promotional s or otherwise, that contradicts or may contradict anything in this Section 10. If Ambassador authorizes, assists, encourages, or facilitates another person or entity to take any action related to the subject matter of this Agreement, Ambassador will be deemed to have taken the action itself. Ambassador shall bear its own costs and expenses incurred in the performance of activities relating to this Agreement. b. Ambassador shall clearly state the following on Ambassador s website and any Promotional [Insert your name] is a participant in the Cambly Ambassador Program, an affiliate marketing program designed to provide a means for sites to earn certain fees by advertising and linking to Miscellaneous. a. Ambassador shall not use Company s name or mark or directly or indirectly refer to Company or the relationship created by this Agreement in any media release, public announcement, or public disclosure, including in any promotional or marketing materials, customer lists or business presentations without the prior written consent of Company prior to each such use or release. b. This appointment is personal to Ambassador. Ambassador shall not assign, transfer, or delegate this Agreement, or any or all of its rights or obligations herein, by operation of law or otherwise, without Company's prior written consent. To the extent Ambassador utilizes any third party service provider in connection with any Promotional or other activities relating to this Agreement, Ambassador agrees that it shall be liable for any acts, omissions or negligence of such service provider or any breach of this Agreement caused by such service provider. c. In conformity with the United States Foreign Corrupt Practices Act in connection with the transaction contemplated under this Agreement, each Party and its employees and agents shall not directly or indirectly make any offer, payment, or promise to pay; authorize payment; nor offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing any act or decision of an official of any government (including a decision not to act) or inducing such a person to use his or her influence to affect any such governmental act or decision in order to assist such Party in obtaining, retaining or directing any such business. d. This Agreement shall be exclusively governed by the laws of the State of California, without regard to principles of conflicts of laws. e. The entire understanding between the parties is incorporated herein and supersedes all prior discussions, programs, and agreements between the parties relating to the subject matter. This Agreement can be modified only by a written amendment executed by Ambassador and Company. Agreement. f. Sections 1, 3, 6, 7, 8, 9 and 10 shall survive any expiration or termination of this 4

5 g. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, such provision shall be enforced to the fullest extent permitted by applicable law and the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired. Any waiver of any kind by either party of a breach of this Agreement shall not operate or be construed as a waiver of any subsequent breach. Any delay or omission in exercising any right, power or remedy pursuant to a breach or default shall not impair any right, power or remedy that the non-breaching party may have. h. Unless otherwise provided in this Agreement, notices shall be in writing and deemed given and received when sent by electronic mail (1) to Company, at team@cambly.com or (2) to Ambassador, at the address set forth on the signature page hereto, or to other addresses as Ambassador and Company specify in writing to the other party. 5

6 IN WITNESS WHEREOF, the parties hereto have executed and agreed to be bound by this Agreement by persons duly authorized as of the Effective Date. AMBASSADOR CAMBLY INC. By: By: Name: Name: Title: Title: address (for Notices): PayPal address (for Commission): SIGNATURE PAGE TO AMBASSADOR PROGRAM AGREEMENT

SERVICE REFERRAL AGREEMENT

SERVICE REFERRAL AGREEMENT THIS SERVICE REFERRAL AGREEMENT (the "Agreement" ) is made and entered into on the date accepted by the Company identified below in the acceptance process ( Referral Representative