Athlete Program Terms and Conditions
SERVICE RECIPIENT (Company): COSIDLA, Inc.
SERVICE PROVIDER (Endorser): OSL Athlete.
Affiliate Agreement. This agreement (the “Agreement) is made between COSIDLA, Inc., a Delaware corporation with a principal place of business at 9465 Wilshire Blvd. Suite 300, Beverly Hills, California 90212 (the “Company”), and the Affiliate, (and collectively, the “Parties”) for participation in The Company’s affiliate program.
Affiliate wishes to include certain materials promoting Company, and to include a link to Company’s website, social media sites, or sales platforms within those materials on Affiliate’s website(s) and social media platforms and sites;
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
1. Promotional Materials.
Upon request, Company shall make available to Affiliate certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use on the Affiliate website and social media sites (the “Promotional Materials”). Affiliate shall display the Promotional Materials on Affiliate’s website and social media sites prominently and as Affiliate sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement. Affiliate shall also include a link from the Promotional Materials to Company’s website, social media sites, or sales platforms, as specified by Company.
2. Use of Promotional Materials.
The Affiliate’s use and display of the Promotional Materials on the Affiliate’s site shall conform to the following terms, conditions and specifications:
- a. Affiliate may not use any graphic, textual, or other materials other than the Promotional Materials to promote Company’s website, social media sites, products, or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display.
- b. Affiliate may only use the Promotional Materials for the purpose of promoting Company’s website and social media sites (and the products and services available thereon), and for linking to Company’s website and social media sites.
- c. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Affiliate wishes to alter or otherwise modify the Promotional Materials, Affiliate must obtain prior written consent from Company for such alteration of modification.
- d. The Promotional Materials will be used to link only to Company’s website or social media sites or sales platforms, to the specific page and address as specified by Company.
Company hereby grants to Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the expiration or termination of this Agreement.
4. Third-party Affiliate management platform.
Company owns all material submitted or uploaded by Affiliate onto the Affiliate management platform being used by Company to communicate all requirements asked from Affiliate including tasks, promotional content, products and services, information and intellectual property, and media of any sort.
5. Intellectual Property.
Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, trade dress, trade secret, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License, as set forth in Section 3.
6. Relationship of Parties.
This Agreement shall not be construed to create any employment relationship, agency relationship, or partnership between Company and Affiliate. Affiliate shall provide services for Company as an independent contractor. Affiliate shall have no authority to bind Company into any agreement, nor shall Affiliate be considered to be an agent of Company in any respect. Affiliate is responsible for any reporting of income to tax authorities or other government authorities.
- a. In exchange for Affiliate’s display of the Promotional Materials, and for Affiliate’s compliance with and performance of the terms and conditions of this Agreement, Company shall pay to Affiliate a commission (the “Commission”) in the amount of a percentage of product price (after any used discounts, if applicable) to a user that accesses Company’s agreed sales platforms through a 12% referral code on Affiliate’s website or social media sites or sales platforms. The current commission percentage posted is 10%. This percentage is subject to change by the Company at any time. Notification to Affiliate of any change in commission percentage will be given by Company at the email address on hand for the Affiliate. Commission will be based on purchases made by a third party user for any new purchases.
- b. Company shall keep accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate shall be given a report at the end of each month showing Affiliate’s performance and upcoming payment. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by Company within 14 days of written notice by Affiliate of discovering such discrepancy.
- c. Commissions are held for a period of one (1) calendar month from any purchase to protect Company in the event of any chargeback from a customer’s payment method that may occur (such as a credit card provider chargeback deducting funds from Company’s account after a customer request). Company shall pay all Commissions accrued during the prior calendar month and payable to Affiliate within 10 days of the first day of each calendar month (the “Commission Payment Date”). If on any Commission Payment Date, the amount of total Commissions accrued and payable to Affiliate is less than $10.00, then such accrued and payable balance shall be held over to the following calendar month, and paid together with the Commissions due for that calendar month. If at any time, the balance of accrued and payable Commissions is held over for two (2) consecutive months, then Company can choose to pay all accrued and payable Commissions to Affiliate in the third month, regardless of the total amount owed. Payment is made to the Affiliate PayPal account, for which Affiliate is responsible for maintaining a current PayPal account. If the Affiliate’s PayPal email changes, it is Affiliate’s responsibility to notify the Company to ensure delivery of proper commission payments.
- d. In the event that Affiliate materially breaches this Agreement and Company terminates this Agreement within 30 days of such breach, then any accrued and payable Commissions owing to Affiliate shall be forfeited, and Company shall not be obligated to pay such Commissions to Affiliate.
- e. Affiliate’s referral code is not intended for personal use. Company reserves the right to corrective action where Company deems necessary.
8. Affiliate’s Representations and Warranties.
Affiliate represents and warrants the following:
- a. Affiliate has the legal authority to enter into this Agreement and to be bound to the promises, covenants, and other duties set forth in this Agreement.
- b. Affiliate is at least eighteen (18) years of age.
- c. Affiliate’s website and social media sites do not contain any materials that are:
- i. Sexually explicit, obscene, or pornographic;
- ii. Offensive, profane, hateful, threatening, harmful, defamatory, libelous, harassing, or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability, or other socially disagreeable characteristics);
- iii. Graphically violent, including any violent video game images;
- iv. Solicitous of any unlawful behavior; v. Contains software downloads that potentially enable diversions of commission from other affiliates in the Company’s program;
- or vi. Resembling the Company’s websites or social media sites in a manner that leads consumers to believe Affiliate is the Company;
- or vii. Otherwise detracts from profitable sales of Company’s products or services.
- d. Affiliate has obtained any necessary clearances, licenses, or other permission for any third-party intellectual property used on Affiliate’s website and social media websites. Nothing on Affiliate’s website or social media websites infringes upon the intellectual property rights of any person or entity. No person or entity has brought or threatened an action claiming such infringement, nor does Affiliate have any reason to believe that any person or entity will bring or threaten such a claim in the future. Affiliate agrees to report to the Company whether any person or entity subsequently brings or threatens an action claiming infringement.
- e. Affiliate will not use the Promotional Materials in any manner other than those set forth in Sections 1 and 2 above.
- f. Affiliate will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, trade dress, trade secrets, or other intellectual property therein.
- g. Affiliate will not publish or otherwise distribute any advertising materials for Affiliate’s website or social media sites that reference Company or Company’s website or social media sites unless Company gives prior written consent to the distribution of such materials. Affiliate will not use Company’s name (or any name that is confusingly similar to Company’s name) for any purpose on its website or social media sites, in its promotional materials, or in any other context except to promote Company’s website or social media sites as specified in this Agreement. Affiliate will not register any domain name that incorporates Company’s name, or that is confusingly similar to Company’s name, product names, trademarks, variations or misspellings thereof. Affiliate will not use Company’s name, or that is confusingly similar to Company’s name, product names, trademarks, variations or misspellings thereof in any search engine advertising (paid or otherwise), bids for keywords or adwords (or similar programs by search engines or apps), in any metatags, keywords, advertising, search terms, code, or other methods for attracting visitors to website or social media platforms.
- h. Affiliate will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing Company or Company’s website or Company’s social media sites.
Affiliate shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Affiliate’s warranties set forth in Section 7 above. Affiliate shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Affiliate of the Promotional Materials.
Any information that Affiliate is exposed to by virtue of its relationship with Company under this Agreement, which information is not available to the general public, shall be considered to be “Confidential Company Information.” Affiliate may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Affiliate obtains prior written consent for such disclosure from Company.
- a. This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 10.
- b. Either Party shall have the right to terminate this Agreement at any time and for any cause.
Company shall not be responsible for any taxes owed by Affiliate arising out of Affiliate’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Affiliate.
13. Limitation of Liability.
Company shall not be liable for any loss of profits or costs, or for any direct, indirect, special, incidental or consequential damages, including costs associated with the procurement of substitute goods or services (whether Company was or should have been aware or advised of the possibility of such damage), arising out of or associated with any loss, suspension or interruption of service, termination of this Agreement, use or misuse of the Promotional Materials, or other performance of services under this Agreement.
14. This Agreement shall be governed by, and enforced in accordance with, the laws of the State of California (excluding the choice of law principles thereof). The Parties to this Agreement hereby agree to submit to the non-exclusive jurisdiction of the courts located in the County of Los Angeles or the County of Orange, in the State of California in any action or proceeding arising out of or relating to this Agreement. This Agreement shall inure to the benefit of, and be binding upon, Company and Affiliate (including any present or future subsidiaries of Affiliate that are not signatories hereto), and their respective successors and assigns. In the event of a dispute, the substantially prevailing party is entitled to recover reasonable attorney fees and court costs.
If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.
This Agreement may be executed in several counterparts, each of which shall constitute an original and all of which, when taken together, shall constitute one agreement.
17. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that Party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
19. Entire Agreement.
This Agreement constitutes the entire agreement between Company and Affiliate, and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date shown above.
Endorsement Agreement The Sponsorship Endorsement Agreement (“Agreement”) is made effective through means of electronic signature through method of clickwrap agreement upon checking the box indicating Endorser’s agreement and acknowledgement of this Agreement prior to registering on the third-party affiliate management platform provided by Company. By and between COSIDLA Inc. (hereafter “Company”) of 9465 Wilshire Blvd. Suite 300, Beverly Hills 90212, CA and the Affiliate (hereafter “Endorser”) WHEREAS, Company is a corporation duly organized, validity existing, and in good standing under the laws of the State of Delaware. WHEREAS, Endorser is a person whose endorsement and services have commercial value to Company.
WHEREAS, Company is desirous to obtain the right to use the name, likeness, and endorsement of the Endorser in connection with the advertisement and promotion of its products, namely the Old School Labs line of nutritional supplements.
NOW THEREFORE, in consideration of the agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Endorser and the Company agree as follows: APPOINTMENT. Company would like Endorser’s assistance in offering/selling Company’s products. Company hereby appoints Endorser as its representative on a non-exclusive, non- employee basis to endorse its products.
The term of this agreement will commence upon the date hereof and shall continue until terminated by either party providing written notice. The terms of this agreement will automatically renew after one year from the effective date of the partnership yearly unless either party gives the other written notice of termination at least 30 days prior to the end of the relevant term.
In connection with the appointment, Endorser agrees to do the following:
- A. That the Endorser hereby authorizes and grants to the Company the exclusive right, license and interest to use the Endorsement in respect of the marketing, promotion, advertising and sale of the product;
- B. That throughout the term of this Agreement, the Endorser hereby agrees that s/he shall not grant the right to use Endorser’s name, nickname, autograph, voice, signature, photograph, likeness or image to any other company, manufacturer or retailer of the same product or similar product or any product in the nutritional supplements industry;
- C. That Endorser only engage in lawful conduct online and respect the rules of native advertising;
- D. That Endorser hereby agrees that he or she shall not sponsor or endorse any other product made or sold by any other company, manufacturer or retailer which is the same product or similar to the product or any product in the nutritional supplements industry;
- E. That the Endorser and the Company hereby agrees that should the Endorser be involved in any sponsored photography sessions, radio, online, or television commercials, the Endorser shall cooperate with the Company to wear any items of clothing or accessories that the Company deems appropriate for the marketing, promotion, advertising and sale of the Product.
- F. That the Endorser hereby agrees to publicise his or her use of Company products on social media platforms selected by Company (Facebook, Twitter, Instagram, and such) and according to the Company’s posting schedule requirements;
- G. That the Endorser hereby agrees to be available and participate in online promotional activities (such as, online video interviews, training videos, and such) and offline promotional activities (events, meetups, and such) that are requested by Company;
- H. That the Endorser hereby agrees that a representative from the Company be allowed to be present when Endorser is in any way Endorsing the Company during events, interviews, tapings, marketing, promotion, advertising, and other promotional events;
- I. That the Endorser agrees to update the Bio section where allowed by the platform) to include the Company’s URL or endorsement on Facebook, Twitter, YouTube, Snapchat and other social media platforms. On Instagram, Company can request the inclusion of a URL of its choosing for a temporary replacement of the URL of the Endorser for up to 24 hours, and up to 4 (four) times per month. Permanent placement with website link of Company on Endorser’s website(s) will be featured;
- J. That the Endorser hereby agrees to provide at least one social media post per week about OSL on their largest platform. The post should link back to the Endorser’s personal Old School Labs page and/or contain the appropriate hashtags (ex: #OldSchoolLabs, #TeamOSL, #OSLGoldenEra, #OSLAthlete, #Vintage
- K. That the Endorser hereby agrees to provide a monthly blog post of more than 200 words or vlog exceeding 1 minute. The topic of the blog post can be on the athlete’s journey or challenges or use of Old School Labs products. Generally, they can also be training tips and tricks, nutrition opinions, personally relevant stories, etc. The blog posts may be edited by Old School Labs to ensure proper grammar, formatting, etc. L. That the Endorser hereby agrees to provide the Company performance reports upon their request regarding social media performance and/or online site platform performance.
Each party agrees that it will not disclose to any third party or use any Confidential information disclosed to it by the other party except as expressly permitted in this Agreement; and that it will take all reasonable measures to maintain the confidentiality of all confidential information of the other party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
In exchange for Endorser’s performance of his or her responsibilities and upon completion of the Services described in this Agreement, Company will provide Endorser with monetary rewards and free products to use in cooperation between Endorser and the Company. Upon entering the partnership, the Endorser will receive 1 free OSL product of their choice and a 20% personal-use discount. After the first month of the partnership, the Endorser will receive a monthly 20% discount on any additional OSL supplements up to five products per code use.
POINT-BASED REWARDS. Endorser agrees that rewards, both monetary and free products, are earned through the accumulation of the required amount of points specified on the third-party affiliate management platform which are granted through both challenges on the third-party affiliate management platform and generated referral sales which are made using Endorser’s unique public discount code.
PROMOTIONAL USE RIGHTS SURVIVE TERMINATION.
During the Agreement, it is understood that the Endorser grants the right for Company to use Endorser’s name, nickname, autograph, voice, quotations, advice, signature, photograph, video, likeness or image for Company’s promotional, sales, and marketing use in the nutritional supplements industry (“Rights to Endorser’s Expressive Content”). Company understands that it has no Rights to Endorser’s Expressive Content that was not provided to Company from Endorser during the active term of the Agreement nor after the term of the Agreement to any Rights to Endorser’s Expressive Content unless provided directly to Company from Endorser. As affirmed in the Agreement, Endorser will not provide Endorser’s Expressive Content or rights therein to any other entity in the nutritional supplements industry during the term of the Agreement.
If Company and Endorser later agree that Endorser should provide services not provided for in the Agreement or this Addendum, Company and Endorser agree, without obligation, to agree further in writing regarding any provision of those other services and any appropriate compensation.
Each party hereto (the “Indemnitor”) hereby indemnifies and holds the other party hereto (“Indemnitee”) harmless from and against any and all liabilities, claims, demands, loss, and damage (including reasonable attorneys’ fees and court costs) arising out of or connected with any claim by a third party which is inconsistent with any of the warranties, representations, covenants, or agreements made by the Indemnitor herein or the actions or omissions of the Indemnitor in connection herewith, and the Indemnitor agrees to reimburse the Indemnitee on demand for any payment made by the Indemnitee at any time after the date hereof with respect to any liability or claim to which the foregoing indemnity applies and which has been reduced to a final judgment or settled with the mutual consent of the parties, which consent shall not be unreasonably withheld.
The Indemnitee shall notify the Indemnitor of any claim, demand, or action for which the Indemnitor may be liable, and Indemnitor shall have the right to participate in the defense of such claim at the Indemnitor’s own expense, with any attorney of the Indemnitor’s choice.
The occurrence of any of the following shall constitute a material default under this Agreement:
- A. The insolvency or bankruptcy of either party.
- B. The subjection of any of either party’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for, or by, any creditor or government agency.
- C. The failure to make available or deliver the Services in the time and manner provided for in this Agreement.
In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party’s reasonable control (“Force Majeure”), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, terrorism, or wars, or strikes, lock-outs, work stoppages. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non- performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or cease. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
Any controversies or disputes arising out of or relating to this Agreement shall be resolved by binding arbitration in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this Agreement. In the event the parties are unable to agree to such a selection, each party will select an arbitrator and the two arbitrators, in turn, shall select a third arbitrator, all three of whom shall preside jointly over the matter. The arbitration shall take place at a location that is reasonably centrally located between the parties, or otherwise mutually agreed upon by the parties. All documents, materials, and information in the possession of each party that are in any way relevant to the dispute shall be made available to the other party for review and copying no later than 30 days after the notice of arbitration is served. The arbitrator(s) shall not have the authority to modify any provisions of this Agreement or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. The agreement to arbitration shall be specifically enforceable under the prevailing arbitration law. During the continuance of any arbitration proceedings, the parties shall continue to perform their respective obligations under this Agreement.
This Agreement contains the entire agreement of the parties, and there are no other promises or conditions in any other agreement whether oral or written concerning the subject matter of this Agreement. This Agreement supersedes any prior written or oral agreements between the parties.
If any provision of this Agreement will be held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement in invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
This Agreement may be modified or amended in writing, if the writing is signed by the party obligated under the amendment.
This Agreement shall be construed in accordance with the laws of the state of Delaware.
Any notice or communication required or permitted under this Agreement shall sufficiently be given if delivered in person or by certified mail, return receipt requested, to the address set forth in the opening paragraph or to such other address as one party may have provided to the other in writing.
WAIVER OF CONTRACTUAL RIGHT.
The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
IN WITNESS WHEREOF the parties have executed this Agreement as of the date shown above.