This agreement (the "Agreement) is made between The Elephant Pants Inc., (the "Company"), and the Brand Ambassador and/or Sales Affiliate ("Ambassador or Affiliate"), and collectively, (the "Parties") for participation in The Company's Brand Ambassador program
NOW THEREFORE, in consideration of the mutual promises, covenants, warranties, and other good and valuable consideration set forth herein, the Parties agree as follows:
SECTION 1. Usage Rights: Ambassador shall grant Company the rights to use their name and likeness, and in so doing, promises to promote and recommend the Company and its products to the public. Ambassador also grants Company a license to use any photographs, video and/or material created by Ambassador or used by Ambassador for promotion of the Company’s products throughout the Agreement Term and for a period of up to twelve (12) months after the termination date. Ambassador agrees to promote Company and its products as may be deemed appropriate and reasonable, as well as to demonstrate consistent support for the Company and its products on social media outlets including but not limited to Facebook, Twitter and Instagram.
SECTION 2. Custom Discount Code. Ambassador will receive custom discount code(s) for the Company website that will provide a savings to any referrals who use the Ambassador code on www.theelephantpants.com. This code can be distributed at the discretion of the Ambassador.
SECTION 3. Content Relativity. In order for Ambassadors to be awarded for their User Contributions, the content must be relevant to The Elephant Pants brand, mission or other determined by our sole discretion. Irrelevant content will not receive awards and may be subject to removal.
SECTION 4. Use Of Data. The Company is not responsible for any data charges or fees from use of electronic devices such as but not limited to, tablets, smartphones and computers while acting as Ambassador or otherwise.
SECTION 5. If Ambassador does not comply with this Agreement or does not continue to promote and represent Company in a positive manner or in such way consistent with Company image, Ambassador will be subject to termination in the Company's discretion.
SECTION 6. Ambassador agrees and understands that while under this agreement Ambassador shall not provide similar services to any competitor without the prior written consent of the Company.
SECTION 7. This Agreement shall not render the Ambassador an employee, partner, agent of, or joint venture with the Company for any purpose. The Ambassador is and will remain an independent contractor in its relationship to the Company. The Company shall not be responsible for withholding taxes with respect to the Ambassador's compensation hereunder. The Ambassador shall have no claim against the Company hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker's compensation, health or disability benefits, unemployment insurance benefits, or employee benefits of any kind The Ambassador hereby waives the benefit of any state or federal statutes dealing with the establishment and regulation of franchises The Ambassador shall not have any power or express or implied authorization to bind the Company or to assume or to create any obligation or responsibility, express or implied, on behalf of the Company or in the Company’s name.
SECTION 8. Ambassador hereby releases, indemnifies and holds harmless, the Company, its agents, employees, assigns, successors, insurers or any related entity, from each, every and all claims both in law and equity and all expenses, debts, covenants, liabilities, or responsibilities in any way relating to or arising from such claims, which Ambassador had or now has against the Company, whether known or unknown, and whether foreseen or unforeseen, arising from, or in any way connected directly or indirectly with, or otherwise related to, this Agreement, or any occurrence related to the performance of Ambassador's duties hereunder. The Company shall hold Ambassador harmless from any liability or expense (including legal fees and costs) made by third parties against Ambassador with respect to claims arising from the manufacture, sale and/or use of Company's products, except when resulting from the gross negligence or willful misconduct of Ambassador.
SECTION 9. Promotional Materials. Company shall make available to Ambassador certain banner advertisements, button links, text links, and/or other graphic or textual material for display and use by Ambassadors on their personal websites or otherwise (the "Promotional Materials"). Ambassador shall display or use the Promotional Materials on Affiliate prominently and as Ambassador sees fit, provided that the manner of display shall be subject to the terms and conditions of this Agreement.
SECTION 10. Use of Promotional Materials. The Ambassador’s use and display of the Promotional Materials shall conform to the following terms, conditions and specifications:
- Ambassador may not use any graphic, textual or other materials to promote Company's website, products or services other than the Promotional Materials, unless Company agrees to such other materials in writing prior to their display or use.
- Ambassador may only use the Promotional Materials for the purpose of promoting Company's website (and the products and services available thereon), and for linking to Company's website.
- Ambassador will not alter, add to, subtract from, or otherwise modify the Promotional Materials as they are prepared by Company. If Ambassador wishes to alter or otherwise modify the Promotional Materials, Ambassador must obtain prior written consent from Company for such alteration of modification.
SECTION 11. License. Company hereby grants to Ambassador 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.
SECTION 12. Intellectual Property. Company retains all right, ownership, and interest in the Promotional Materials, and in any copyright, trademark, or other intellectual property in the Promotional Materials. Nothing in this Agreement shall be construed to grant Ambassador 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 this Agreement.
SECTION 13. Ambassador's Representations and Warranties. Ambassador represents and warrants the following:
- Ambassador's website does not contain any materials that are: i. Sexually explicit, obscene, or pornographic: ii. (otherwise); iii. Graphically violent, including any violent video game images; or iv. Solicitous of any unlawful behavior
- Ambassador has obtained any necessary clearances, licenses, or other permission for any photographs, drawings, writings, text, art work, or other intellectual property used on Ambassador's website, provided by Ambassador to the Company, or otherwise used by Ambassador in connection with promoting the Company’s products or performing its obligations under this agreement. No such intellectual property used by Ambassador or provided by Ambassador to the Company. infringes upon the intellectual property rights of any person or entity. Ambassador represents that no such intellectual property, including but not limited to photographs, will violate rights of publicity or privacy belonging to persons whose image, portrait or likeness is shown, used, described, displayed or depicted. No person or entity has brought or threatened an action claiming such infringement, nor does Ambassador have any reason to believe that any person or entity will bring or threaten such a claim in the future.
- Ambassador will not use the Promotional Materials in any manner other than those expressly authorized under this agreement or otherwise in writing by the Company.
- Ambassador will not make any claim to ownership of the Promotional Materials, or of the copyright, trademark, or other intellectual property therein.
- Ambassador will not publish or otherwise distribute any advertising materials that reference Company or Company's website unless Company gives prior written consent to the distribution of such materials. Ambassador will not use Company's name (or any name that is confusingly similar to Company's name) for any purpose on its website, in its promotional materials, or in any other context except to promote Company's products as specified in this Agreement. Ambassador will not register any domain name that incorporates Company's name, or that is confusingly similar to Company's name.
- Ambassador will not engage in the distribution of any unsolicited bulk emails (spam) in any way mentioning or referencing Company or Company's website.
SECTION 14. Indemnification. Ambassador shall indemnify Company and hold harmless Company from any claim, damage, lawsuit, action, complaint, or other costs arising out of any breach of Ambassador's warranties set forth in Section 13 above. Ambassador shall also indemnify and hold harmless Company for any damage, loss or other cost arising out of the use or misuse by Ambassador of the Promotional Materials.
SECTION 15. Confidentiality. Any information that Ambassador 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." Ambassador may not disclose any Confidential Company Information to any person or entity, except where compelled by law, unless Ambassador obtains prior written consent for such disclosure from Company.
SECTION 16. Term.
- This Agreement shall take effect immediately, and shall remain in full force and effect indefinitely, or until terminated pursuant to this Section 16.
- Either Party shall have the right to terminate this Agreement at any time and for any cause. The terminating Party must give written notice to the other Party at least 30 days prior to the intended date of termination.
SECTION 17. Taxes. Company shall not be responsible for any taxes owed by Ambassador arising out of Ambassador’s relationship with Company as set forth in this Agreement. Company shall not withhold any taxes from the Commissions paid to Ambassador.
SECTION 18. 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.
SECTION 19. Counterparts. 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.
SECTION 20. Severability. 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.
SECTION 21. Headings. The headings for section herein are for convenience only and shall not affect the meaning of the provisions of this Agreement.
SECTION 22. Entire Agreement. This Agreement constitutes the entire agreement between Company and Ambassador, 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.
SECTION 23. The Company holds the right to terminate this agreement at any time upon written notice.
SECTION 24. This Agreement shall be governed by the laws of the State of California.