COLLABORATOR TERMS AND CONDITIONS
Last Modified: October 8th, 2020
These Collaborator Terms and Conditions are entered into by and between You (“Collaborator”) and Black Stark Enterprises Inc., doing business as Vegan, What? (“Company”, “we” or “us”). The following terms and conditions, together with the Digital Product Collaboration Agreement (collectively, the “Agreement”), govern the inclusion of your Digital Product in Company’s bundle of e-books and e-courses (“eBundle”).
In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
STATEMENT OF WORK
The “Statement of Work” shall be statement of work as specified in the Digital Product Bundle Collaboration Agreement in effect at the time of acceptance of these Terms and Conditions.
These Collaborator Terms and Conditions and the Digital Product Collaboration Agreement constitute the sole and entire agreement between you and Company and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the eBundle and related activities.
OBLIGATIONS OF THE PARTIES
Company agrees to:
Perform services in accordance with the Statement of Work.
Coordinate with various other creators and authors if digital products, e-books, and e-courses for inclusion in the eBundle.
Coordinate with various influencers, affiliates, and other promoters to market the eBundle.
Create a sales page and maintain the platform that tracks sales and commission.
Sell the eBundle as one product and not separately sell the individual digital products that are included in the eBundle.
Provide a special affiliate link for Collaborator to give to its customer and followers, whereby they can make qualifying purchases.
Sell the eBundle during the time period that shall be calculated as beginning on the eBundle Offering Start Date and ending on the eBundle Offering End date. Company may at its sole discretion offer the Digital Product at additional times during the following one (1) year period in other bundles with varying digital products, provided that those offering periods shall not exceed an aggregate total of thirty (30) calendar days (“eBundle Renewal”).
4 weeks prior to the relaunch Company will communicate to Collaborator’s email on file of the Company’s intention to use their product. If Collaborator wishes to opt out of the relaunch, they will need to respond to the Company’s email (firstname.lastname@example.org) listed on the contract 2 weeks prior to the relaunch. Company will honor Collaborator’s removal and notify them through email confirmation.
The Collaborator agrees to:
Perform the services and make the Digital Product available to Company in strict accordance with the specifications outlined Statement of Work.
Actively maintain and monitor his/her account in the Affiliate Tracking Platform.
Give the Company a license to use its logos, trademarks, photographs, and other intellectual property for the sole purpose of promoting and selling the eBundle.
Guarantee the proprietorship and ownership of all content used in its Digital Product, and indemnify the Company against any type of claim that may arise related to the Digital Product’s contents.
Allow its Digital Product to be included in eBundle Renewals.
Opt out of eBundle Renewals via email on file 2 weeks before relaunch of eBundle.
In consideration of the provision of the services by the Collaborator and the rights granted to Company under this Agreement, Company shall pay the fees set out in below. Payment to Collaborator of such fees shall constitute payment in full for the Digital Product. The count of the number of eBundles effectively sold through the Collaborator’s referral links can be verified through the Affiliate Platform software.
Collaborator will receive 70% of the proceeds from Qualifying Purchases made using his or her referral link during the sale period (“Collaborator Fees”). Collaborator Fees shall be calculated based on reported sales in the Affiliate Tracking Platform. Collaborator shall be responsible for all taxes imposed on, or regarding, Collaborator’s income, revenues, or gross receipts. Collaborator Fees will be paid via the designated Payment Processor within thirty (30) days of finalizing a Qualifying Purchase.
Company will distribute 5% of revenue received from Qualifying Purchases of eBundle made through non-collaborator affiliate sales evenly amongst all eBundle collaborators (“Affiliate Fees”). Affiliate Fees shall be calculated based on reported sales in the Affiliate Tracking Platform. Collaborators will be entitled only to Affiliate Fees on eBundles that include Collaborator’s Digital Product. Affiliate Fees will be paid via the designated Payment Processor no later than forty-five (45) days after the eBundle Offering End Date.
Collaborator shall be entitled to the Collaborator Fees and Affiliate Fees as specified in this section on all eBundle Renewals that include Collaborator’s Digital Products.
All fees contemplated under this section are subject to the Company’s Right to Investigate False Purchases.
RIGHT TO INVESTIGATE
Notwithstanding anything to the contrary contained in this Agreement, Company reserves the right to inspect all purchases for fraud, abuse, and bad faith (“False Purchases”). Company reserves the right to withhold payment of any fees on False Purchases to Collaborator until Company concludes its investigation and deems in its sole discretion that the purchases were in fact Qualifying Purchases.
Company will pay the Collaborator Fees as described above in connection with “Qualifying Purchases,” which occur when:
A customer clicks through Collaborator’s link
During a single session, which is measured as beginning when a customer clicks through Collaborator’s Link and ending upon the customer purchasing the product up to 30 days later.
The sales are effectively captured in the Affiliate Tracking Platform.
Company will pay the Affiliate Fees as described above in connection with “Qualifying Purchases,” which occur when:
A customer clicks through a non-collaborator affiliate’s link
During a single session, which is measured as beginning when a customer clicks through a non-collaborator affiliate’s link and ending upon the customer purchasing the product up to 30 days later.
The sales are effectively captured in the Affiliate Tracking Platform.
Notwithstanding the foregoing, Qualifying Purchases are disqualified whenever they occur in connection with a violation of this Agreement or any other terms, conditions, specifications, statements, and policies that we may issue from time to time that apply to the eBundle, including the most up-to-date version of this Agreement.
Further, the following purchases that would otherwise be Qualified Purchases are disqualified and excluded from the Associates Program:
Any eBundles purchased after termination of your Agreement.
any purchases where a cancellation, return, dispute, chargeback, or refund has been initiated.
Any purchase of Product that has not been correctly tracked or registered because the Collaborator’s or an affiliate’s link was not properly formatted.
Any purchase that has not been properly tracked or registered due to the customer having deleted their cache or cookies between clicking on the Collaborator’s or affiliate’s link and the purchase.
Any purchase made after Collaborator has abandoned the program by clicking on any button within the affiliate program to affirmatively communicate its desire to leave the program.
Any purchase made as a result of a breach of this Agreement.
Any fraudulent purchases or False Purchases.
TERM, TERMINATION, AND SURVIVAL
This Agreement will be effective on the Effective Date, and unless extended by written agreement of both Parties, this Agreement will expire automatically one (1) year following the final date of the sale period of the eBundle, without detriment to the obligation of payment by the Company to Collaborator as established in the Payment clauses of this document.
Either Party may terminate this Agreement, effective upon written notice to the other Party (the “Defaulting Party”) if the Defaulting Party:
Breaches this Agreement, and such breach is incapable of cure, or with respect to a breach capable of cure, the Defaulting Party does not cure such breach within 10 days after receipt of written notice of such breach.
Becomes insolvent or admits its inability to pay its debts generally as they become due.
Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven days or is not dismissed or vacated within 45 days after filing.
Is dissolved or liquidated or takes any corporate action for such purpose.
Makes a general assignment for the benefit of creditors.
Has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
The rights and obligations of the parties set forth in this Term, Termination, and Survival section and any right or obligation of the parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.
Each of the Parties declares and guarantees to hold the title to make use of the intellectual property rights referring to their respective trademarks and commercial names, authorizing the use by the other Party under the terms and conditions established in this Agreement. Therefore, Collaborator agrees to release Company from any liability resulting from claims made by third parties regarding this matter.
Each of the Parties shall retain all rights over their respective names, logos, trademarks, and/or any other property or rights protected by the current rules on intellectual industrial property. In no case shall this Agreement be interpreted as a waiver of the rights that correspond to each of the Parties from industrial or intellectual property over the goods or rights that such rules regulate.
The Collaborator guarantees the proprietorship and ownership of the content of its Digital Product and hereby indemnifies Company against any and all claims that may arise related to the content of its Digital Product.
The Collabortator exonerates the Company from any claim that, in relation to the contents of its ebook, could be made by any third party in relation to said contents, and the legal obligations that entails its use, exonerating the Company expressly and totally of any type of responsibility or compensation, the Collaborator assuming it as its own, as well as, if applicable, of all costs or expenses of whatever nature, arising from such claims, whether judicial or extrajudicial.
The Collaborator expressly exonerates the Company from any liability that may arise from the improper use of the course by third party buyers.
IN NO EVENT SHALL COMPANY BE LIABLE TO COLLABORATOR OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT COLLABORATOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COLLABORATOR PURSUANT TO THE APPLICABLE STATEMENTS OF WORK IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
RELATIONSHIP OF PARTIES
The relationship between the parties is that of independent contractors. The details of the method and manner for performance of the services outlined in this Agreement shall be under each Party’s own control, each Party being interested only in the results thereof. Nothing in this Agreement shall give the Company the right to instruct, supervise, control, or direct the details and manner of the completion of any services hereunder. The Digital Product must meet the Company’s final approval and shall be subject to the Company’s general right of inspection to secure satisfactory final completion. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
From time to time during the Term of this Agreement, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within five (5) days thereafter, is summarized in writing and confirmed as confidential, or if disclosed orally or in writing and would reasonably be considered confidential in the normal course of business, regardless of if such information bears “confidential” markings (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.
If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section only, Receiving Party’s Group shall mean the Receiving Party’s employees, officers, directors, shareholders, partners, members, managers, agents, independent contractors, service providers, sublicensees, subcontractors, attorneys, accountants, and financial advisors.
On Disclosing Party’s request, Recipient shall promptly return to Disclosing Party or destroy all Confidential Information in its and its Representatives’ possession other than Notes, and destroy all Notes, and, at Disclosing Party’s written request, certify in writing the destruction of such Confidential Information; provided, however, that Recipient may retain copies of Confidential Information that are stored on Recipient’s IT backup and disaster recovery systems until the ordinary course deletion thereof. Recipient shall continue to be bound by the terms and conditions of this Agreement with respect to such retained Confidential Information.
This Agreement imposes no obligation on either party to disclose any Confidential Information or to negotiate for, enter into, or otherwise pursue the Purpose. Disclosing Party makes no representation or warranty, expressed or implied, as to the accuracy or completeness of the Confidential Information, and will have no liability to Recipient or any other person relating to Recipient’s use of any of the Confidential Information or any errors therein or omissions therefrom.
Disclosing Party retains its entire right, title, and interest in and to all Confidential Information, and no disclosure of Confidential Information hereunder will be construed as a license, assignment, or other transfer of any such right, title, and interest to Recipient or any other person.
Recipient acknowledges and agrees that any breach of this Agreement will cause irreparable harm and injury to Disclosing Party for which money damages would be an inadequate remedy and that, in addition to remedies at law, Disclosing Party is entitled to equitable relief as a remedy for any such breach, without posting a bond or other security. Recipient waives any claim or defense that Disclosing Party has an adequate remedy at law in any such proceeding. Nothing herein shall limit the equitable or available remedies at law for Disclosing Party.
However, the Company reserves the right to share the number of bundles sold and/or money earned by the Collaborator to any future potential Collaborators or affiliate with the sole purpose of encouraging them to join or be a part of a future bundle or offering.
The terms contained in this section shall survive termination of the Agreement
CHOICE OF LAW, CHOICE OF FORUM, & ARBITRATION
This Agreement and all related documents, including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of California, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of California.
Unless remedies have been explicitly provided for otherwise in this agreement and the aggrieved party seeks to enforce its rights in accordance with those remedies, and excluding suits for injunctive relief, the exclusive means of resolving through adversarial dispute resolution any disputes arising out of this agreement shall be as follows:
For any dispute, claim or controversy under $25,000 in value arising out of or relating to this agreement, or the breach thereof, either Party may demand that any such dispute be resolved by arbitration administered by FairClaims (www.fairclaims.com) in accordance with its Arbitration Rules & Procedures effective at the time a claim is made, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
For any dispute, claim or controversy at least $25,000.01 in value arising out of or relating to this agreement, or the breach thereof, either Party may demand that any such dispute be resolved by arbitration before one (1) arbitrator, administered by either JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules, or by the American Arbitration Association in accordance with its Commercial Arbitration Rules, whichever is chosen first.
Each Party hereby expressly consents to any such disputes being so resolved by these arbitration terms, and that all proceedings be exclusively conducted electronically via secure video chat, when available. If electronic attendance is not available, all arbitration hearings shall be conducted in any suitable facility located in the Kern County, California area. The Parties consent to electronic service of process, with service to be made to the email addresses as specified in the Notices section below.
The parties agree to split all arbitration fees evenly.
Judgment on the award rendered in any arbitration hearing shall be binding and entered in any court having jurisdiction. The arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim. The arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part. Such an arbitration clause shall be treated as an agreement independent of the other terms of the contract. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed and the remaining arbitration terms shall be enforced
In the event that either party demands arbitration for any dispute, both parties shall be obligated to the arbitration procedures contained herein and understand that decisions rendered by the arbitrator(s) are non-appealable. In the event that neither party demands arbitration, the Parties agree that Kern County, California will be the sole agreed venue for litigation necessary to enforce the agreements set forth herein.
Nothing in this Agreement shall prevent either Party from applying to and obtaining from any court having jurisdiction a temporary injunction, preliminary injunction, permanent injunction or other equitable relief available to safeguard and protect its interest and prevent immediate loss. Either Party shall also be entitled to file in any court having jurisdiction any suit necessary to enforce a decision or award resulting from any arbitration or other proceeding.
The arbitrator or arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
The terms contained in this section shall survive termination of the Agreement.
WAIVER OF JURY TRIAL
EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.
COLLABORATOR HEREBY IRREVOCABLY WAIVES ITS RIGHT TO JOIN OR CONSOLIDATE CLAIMS OR DISPUTES AGAINST COMPANY WITH OTHER POTENTIAL OR ACTUAL CLAIMANTS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
Collaborator understands and agrees that any attempt on the part of Collaborator to induce other employees or contractors to leave the Company’s employ, or any effort by Collaborator to interfere with the Company’s relationship with its employees or other service providers would be harmful and damaging to the Company.
During the term of this Agreement and for a period of one year after the expiration or termination of this Agreement, Collaborator will not in any way directly or indirectly:
Induce or attempt to induce any employee or other service provider of the Company to quit employment or retainer with the Company;
Otherwise interfere with or disrupt the Company’s relationship with its employees or other service providers;
Discuss employment opportunities or provide information about competitive employment to any of the Company’s employees or other service providers; or
Solicit, entice, or hire away any employee or other service provider of the Company.
The terms contained in this section shall survive termination of the Agreement.
DISCLOSURE TO THIRD-PARTIES AND COLLECTIONS.
Notwithstanding anything in this Agreement to the contrary, Company reserves the right to use and disclose Collaborator’s personal and sensitive information to third-parties to the extent reasonably necessary to fulfill its obligations and enforce its rights under this Agreement. Company agrees to not otherwise use, sell, rent, transfer, distribute, or otherwise disclose or make available Collaborator’s information for its own purposes or for the benefit of anyone other than Collaborator. Collaborator hereby irrevocably consent to the Company sharing its personal and/or identifying information to third-parties, including but not limited to, collection agencies and credit bureaus, in order collect or report any monies owed by Collaborator under this Agreement.
If any term or provision of this Agreement is found by a competent fact-finder, in accordance with the dispute resolution terms contained herein, to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision; provided, however, that if any fundamental term or provision of this Agreement is invalid, illegal or unenforceable, the remainder of this Agreement shall be unenforceable. Upon a determination that any non-fundamental term or provision is invalid, illegal or unenforceable, the fact-finder may modify this Agreement to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
During the term of this Agreement Collaborator shall, at its own expense, maintain and carry insurance with financially sound and reputable insurers in amounts and with coverage sufficient to protect its business interests related to this Agreement and to cover any potential liability of its employees, workers, and itself.
Collaborator shall not assign, transfer, delegate or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Assignment section shall be null and void. No assignment or delegation shall relieve Collaborator of any of its obligations under this Agreement.
NO THIRD-PARTY BENEFICIARIES
This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns. Unless otherwise explicitly stated otherwise, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns. Nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each Party.
No waiver by Company of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by Company. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
This Agreement, including and together with any related statements of work that are attached (if applicable), exhibits, schedules, other attachments, and appendices constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
JOINT DRAFTING AND NEUTRAL CONSTRUCTION
This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular Party based on a contention that the Agreement was drafted by one of the Parties. This Agreement shall be construed and interpreted in a neutral manner.
Company shall not be liable or responsible to Collaborator, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 10 days, Collaborator shall be entitled to give notice in writing to Company to terminate this Agreement.
Each of the parties agrees to execute and deliver such further documents and to cooperate in such manner as may be necessary to implement and give effect to the agreements contained herein.