|Affiliate Agreement

Affiliate Agreement


This UNTAPP FITNESS REFERRAL AGREEMENT (this “Agreement”), dated _________ (the “Effective Date”), is entered into by Apphodge Co., a Delaware corporation doing business as Untapp (“Company“), and the person or entity named as the Referral Partner on the signature page to this Agreement (“Referral Partner”). The purpose of this Agreement is to set forth the terms and conditions under which Referral Partner may market the Company Services to potential customers and refer potential customers to Company and be compensated by Company for such efforts.
Accordingly, Company and Referral Partner agree as follows:
1. Company Services and Other Defined Terms. “Company Services” means mobile applications, content management system platforms, and industry guidance provided by Company to businesses and individuals that provide fitness, diet, exercise and similar or related services to their clients. Other capitalized terms used in this Agreement shall have the meanings given to such terms in this Agreement (including the Exhibits to this Agreement). The Company has no obligation to continue to offer the Company Services or to refrain from making any changes to the Company Services.
2. Appointment. Subject to the terms and conditions set forth in this Agreement, Company hereby appoints Referral Partner as a non-exclusive referral partner to market the Company Services to potential customers of the Company (“Prospects”), and Referral Partner hereby accepts such appointment. Referral Partner acknowledges and agrees that this appointment is non-exclusive, and that Company may appoint other referral partners and may use its own sales personnel to market, promote and sell subscriptions to the Company Services, including to Prospects.
3. Promotion. During the Term of this Agreement, Referral Partner will, at its sole cost and expense, use its best efforts to: (i) market and promote the Company Services; and (ii) refer Prospects via its marketing emails and promotions to the Company. Company will supply Referral Partner with a promotion code (“Promo Code”) or a link to a Referral Partner specific registration page (“Referral Partner Registration Page”) hosted by Company to use and embed in Referral Partner’s Promotional Materials. The purpose of the Promo Code and the Referral Partner Registration Page, if provided, is to identify a Prospect as having been referred to Company by Referral Partner. In order for Referral Partner to receive credit for any referral, the Prospect must either use the Promo Code or register through the Referral Partner Registration Page, and Referral Partner is solely responsible for informing Prospects that entering the Promo Code or registering through the Referral Partner Registration Page is required when registering for the Company Services. Referral Partner acknowledges that it will not receive a Referral Fee for any Prospect that does not either enter the Promo Code or register through the Referral Partner Registration Page.
4. Promotional Materials. Referral Partner will develop marketing materials pertaining to the Company Services (“Referral Partner Promotional Materials”) at Referral Partner’s sole cost and expense, including those Referral Partner Promotional Materials described on Exhibit B. Company shall have the right to review and approve samples of all Referral Partner Promotional Materials prior to any public use or distribution of the same, and Referral Partner will implement any modifications to the Promotional Materials requested by Company, if any, prior to such public use or distribution. Ownership of the Referral Partner Promotional Materials shall vest in Company, and Referral Partner hereby assigns all right, title and interest in and to the Referral Partner Promotional Materials to Company, including all intellectual property rights therein.
5. Compensation and Payment. Subject to the terms and conditions of this Agreement, Referral Partner shall be paid a monthly referral fee calculated in accordance with Exhibit A (the “Referral Fee”), which Referral Fee shall be paid by Company to Referral Partner by Company check or by wire transfer of immediately available funds within 60 days following the end of the calendar month in which the Referral Fee is earned.
6. Referral Partner Acknowledgments Regarding Promotional Activities. Referral Partner acknowledges and agrees that: (i) Referral Partner shall have no authority to bind Company or enter into any agreement of any type or nature with any Prospect on behalf of Company, or otherwise obligate or commit Company in any manner; (ii) Referral Partner will be solely responsible, and Company will not be liable, for any acts, omissions, agreements, contracts, commitments, promises, representations, or warranties made by Referral Partner, either in its own name or on behalf of Company, except as specifically authorized under this Agreement or otherwise authorized by Company in writing; (iii) Referral Partner shall bear all of its own costs and expenses relating to this Agreement, including, without limitation, expenses associated with the development of Promotional Materials, travel and entertainment expenses, and legal expenses; and (iv) Company has no obligation to accept a subscription from or to provide Company Services to any Prospect, and the provision of any Company Service by Company to any Prospect is subject to such Prospect entering into a legally binding agreement with Company governing the Company Services in a form and substance satisfactory to Company in its sole discretion (“Service Agreement”).
7. Ownership. As between the parties, Company will retain all right, title and interest in and to the Company Services, and all equipment, software, documentation, databases, development tools, know-how, methodologies, processes, and technologies provided by Company or its third-party suppliers for use in connection therewith, and all present and future worldwide copyrights, trademarks, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights therein.
8. Confidentiality and Non-Disparagement
8.1 Confidential Information. “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Notwithstanding the foregoing, Confidential Information shall not include any information, or portion thereof, which: (a) is or becomes a part of the public domain through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records; (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records; or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure. Each party agrees (i) to hold the other party’s Confidential Information in strict confidence and not to disclose it to any third parties without the disclosing party’s written consent, (ii) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (iii) not to use such Confidential Information for any purpose except in connection with exercising a party’s rights or performing obligations under this Agreement. Notwithstanding the foregoing, the receiving party will not be in violation of this Section with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party prior written notice of such disclosure to permit the other party to seek confidential treatment of such information.
8.2 Return of Confidential Information. The receiving party will either, at the disclosing party’s option, return to the disclosing party or destroy all Confidential Information of the disclosing party in the receiving party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the disclosing party or the expiration or termination of this Agreement, whichever comes first. At the disclosing party’s request, the receiving party will certify in writing signed by an officer of the receiving party that it has fully complied with its obligations under this Section 8.2.
8.3 Non-Disparagement. Referral Partner will not make any false or misleading statements regarding Company or the Company Services or publish or communicate disparaging or derogatory statements or opinions about Company, including, but not limited to, disparaging or derogatory statements or opinions about the Company’s ownership, management, products or services, to any third party.

9. Trademark License. Subject to the terms and conditions of this Agreement, Company hereby grants Referral Partner, for the Term of this Agreement, a non-exclusive, non-transferable, royalty-free, worldwide license to use Company’s trademarks, service marks, trade names, logos and other commercial designations (collectively, “Marks”), solely in connection with the performance of Referral Partner’s marketing and promotional obligations hereunder. Notwithstanding the foregoing, Referral Partner will provide Company for review and approval all announcements, press releases and marketing materials pertaining to Company or the Company Services prior to their display or release to the public or the press, and Referral Partner will incorporate all changes that Company may request to ensure usage of the Marks in accordance with Company’s then-current trademark and trade name policies and to ensure the accuracy of the content contained therein. Referral Partner’s use of the Marks and all associated goodwill will inure to the sole benefit of Company. Referral Partner will take no action that would undermine, conflict with or be contrary to Company’s rights and interest in the Marks. Nothing contained herein will be deemed to grant Referral Partner any right, title or interest in or to the Marks other than the license granted herein, and Referral Partner acknowledges Company’s exclusive ownership of the Marks and will not take any action (including, without limitation, using or registering any trademarks that could be confused with the Marks) that would jeopardize the Marks or Company’s interests therein.
10. Warranties.
10.1 Warranties by Both Parties. Each party warrants to the other that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on such party’s behalf has been duly authorized and empowered to execute this Agreement on such party’s behalf.
10.2 Warranties Made by Referral Partner. Referral Partner acknowledges and agrees that Referral Partner’s performance hereunder shall be governed by all applicable laws and regulations, including, without limitation, the CAN-SPAM Act of 2003, laws governing the use of individual information, deceptive and misleading advertising, electronic commercial communications, telemarketing and other similar laws (“Applicable Laws”), and that Referral Partner’s performance shall be in accordance with all Applicable Laws. Without limiting the foregoing, Referral Partner represents and warrants that it will (i) conduct business in a manner that reflects favorably at all times on Company and the good name, goodwill and reputation of Company; (ii) not participate in deceptive, misleading or unethical practices that are or might be detrimental to Company; (iii) make no false or misleading representations and not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Company or any Company Service; (iv) make no representations, warranties or guarantees to Prospects or any other person with respect to the specifications, features or capabilities of Company or the Company Services, except those specifically authorized by Company; (v) not contact any Prospect in a way that suggests that Referral Partner is Company, represents Company, or is acting on behalf of Company; and (vi) comply with all Applicable Laws.
11. Indemnification
11.1 Referral Partner’s Indemnification. Referral Partner will indemnify and hold harmless Company, its affiliates and their officers, directors, agents and employees, from and against any and all losses, liabilities, damages, costs and expenses (including without limitation reasonable attorneys’ fees) arising out of or related to any claim or action based on: (i) any breach of the representations, warranties and covenants of Referral Partner set forth herein; (ii) any intentional or negligent act, omission or misrepresentation by Referral Partner, its agents or employees; or (iii) any representation or warranty made by Referral Partner, its agents or employees on behalf of Company or related to the Company Service not authorized by Company in writing.
11.2 Company’s Indemnification. Company will defend at its own expense any action against Referral Partner brought by a third party to the extent that the action is based upon a claim that the Marks infringe any U.S. trademark, and Company will pay those costs and damages finally awarded against Referral Partner in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. Company will have no obligations under this Section 11.2 if Referral Partner uses or modifies the Marks in violation of this Agreement.
12. Limitation Liability. To the maximum extent permitted by law, except with respect to breach of Section 8 (Confidentiality), Section 10 (Warranties), or indemnification obligations under Section 11 (Indemnification), (I) neither party will be liable for any consequential, indirect, exemplary, special or incidental damages, including any lost data and lost profits, arising from or relating to this agreement, and (II) neither party’s total cumulative liability in connection with this agreement, the Company Services, or the Marks, whether in contract or tort or otherwise, will exceed the fees paid to Referral Partner in the 12-month period immediately preceding the events giving rise to such liability. Referral Partner acknowledges that the fees set forth in this Agreement reflect the allocation of risk set forth in this Agreement and that Company would not enter into this Agreement without these limitations on its liability.
13. Term and Termination
13.1 Term. The term (the “Term”) of this Agreement will begin on the Effective Date and continue until terminated by either party in accordance with Section 13.2.
13.2 Termination. Either party may terminate this Agreement (i) effective immediately upon written notice to the other party, if the other party breaches this Agreement, or (ii) for convenience by providing the other party 45 days prior written notice. In addition, Company may terminate this Agreement at any time, effective immediately upon written notice to Referral Partner, upon a change in Applicable Laws or regulations that would render this Agreement commercially unreasonable in Company’s judgment.
13.3 Effects of Termination. Upon termination of this Agreement for any reason, Referral Partner must immediately cease all marketing activities on behalf of Company, all licenses granted in this Agreement will immediately terminate, Referral Partner must promptly discontinue all further use of the Marks, and Referral Partner must destroy or return to Company all information and materials related to the Company Services. The following sections will survive the expiration or termination of this Agreement for any reason: 6, 7, 8, 10, 11, 12, 13.3, and 15. In addition, Company’s obligation to pay Referral Fees with respect to any Referred Customer that entered into a Service Agreement prior to termination of this Agreement shall continue until such Referral Fees are no longer payable in accordance with this Agreement unless Referral Partner has breached this Agreement (whether or not Company terminated this Agreement as a result of such breach), in which case Company shall no longer be obligated to pay any Referral Fees to Referral Partner.
14. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of amounts due) to the extent caused by strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, terror, war, governmental action, labor conditions, earthquakes, material shortages or any other cause which is beyond the reasonable control of such party.
15. General. Neither party may assign any rights or obligations arising under this Agreement without the prior written consent of the other party and attempted or purported transfer or assignment in violation of the foregoing shall be void and of no force and effect; except that Company may assign this Agreement without consent or notice to the acquirer of or successor to Company in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or stock. This Agreement shall inure to the benefit of and shall be binding on the authorized successors and assignees of the parties. This Agreement will be governed by the laws of the State of Colorado, without giving effect to any principle that would provide for application of the law of another jurisdiction. Any action or proceeding arising from or relating to this Agreement must be brought in a federal or state court sitting in Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such proceeding. If a dispute arising under this Agreement results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys’ fees of the prevailing party. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing to the other party at the address set forth above (each party may change its address from time to time upon written notice to the other party of the new address). This Agreement is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify this Agreement. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. This Agreement may be executed in counterparts, which taken together shall form one legal instrument.
In Witness Whereof, the parties have executed this Agreement as of the Effective Date.
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Exhibit A
Calculation of Referral Fee
The Referral Fee for each calendar month will be calculated by multiplying the Net Revenue received by the Company during such calendar month by the applicable Referral Fee Percentage in accordance with the following table.
Net Revenue
Referral Fee Percentage
Less than $5,000
$5,000 to $10,000
Greater than $10,000

For purposes of this Agreement the following capitalized terms shall have the meanings given to such terms below:
“Net Revenue” means the amount of money actually collected by Company and booked as revenue during the calendar month for subscriptions to the Company Services from Referred Customers, less any credit card processing fees, agency fees, refunds, charge-backs and other amounts paid, credited or written off as bad debt with respect to any Referred Customers during such calendar month.
“Referred Customer” means any customer of the Company that (i) has entered into a Service Agreement and is then subscribing for the Company Services; (ii) subscribed for the Company Services using the Promo Code or through the Referral Partner Registration Page within the preceding 24 month period and has remained a subscriber to the Company Services at all times since so subscribing by using the Promo Code or through the Referral Partner Registration Page; and (iii) was not a customer of the Company or subscriber to the Company Services at any time during the 6 month period preceding the customer’s subscription to the Company Services using the Promo Code or through the Referral Partner Registration Page.

Exhibit B
Marketing Materials
Referral Partner will develop the following marketing and promotional materials:
Training manuals, videos