Exos Online Course Sale Referral Terms

These Exos Online Course Sale Referral Terms (the “Terms”) are dated as of the Effective Date defined in the Exos Online Course Sale Referral Form (“Referral Form”) referencing these Terms, and are by and between Athletes’ Performance, Inc. and the Counterparty specified in the Referral Form (the Referral Form and Terms together, the “Agreement”). Capitalized terms used and not defined in these Terms are as defined in the Referral Form. 

For the purposes of this Agreement:

“Commission” means the fee paid for each Referral Sale as described in Section 4 of this Agreement. 

“Creator Party” means the Party whose Courses are sold.

“Platform” means the applicable learning management system platform used by each Selling Party to sell and deliver Courses. Each Party’s Platform storefront is referred to as its “Store.”

“Referral Sale” means a sale in the Selling Party’s Store of the Creator Party’s Courses. 

“Selling Party” means the Party facilitating a sale of the other Party’s Courses.

“Course MAP” means the minimum price at which the Creator Party’s Course may be publicly advertised by the Selling Party as set forth in the applicable Referral Form. 

“Course MSRP” means the price the Creator Party recommends that the Selling Party charge for Courses as set forth in the applicable Referral Form.

“Net Sale Price” means the actual selling price for the applicable Course, minus taxes, Platform fees and other processing fees, refunds and chargebacks. 

Each Party is a provider of certain digital education courses related to fitness or wellness as set forth in the Referral Form, together with additional courses added from time to time upon mutual written agreement between the Parties (each course, a “Course” and collectively, the “Courses”). Each Party hereby appoints the other Party to act as its non-exclusive sales partner for the purpose of marketing, selling and delivering the other Party’s Courses via the applicable Platform. Sales may be made to any country in the world where sales are lawfully permitted to be made (e.g., no sales to embargoed countries).

3. Referral Sales and Marketing.

3.1. Each Party, as the “Selling Party,” will use commercially reasonable efforts to make available in its Store, the Creator Party’s Courses listed in the Referral Form.

3.2. Each Party will use commercially reasonable efforts to promote the Courses of the Creator Party, provided, that it shall only market the Courses of the Creator Party using  marketing materials approved by the Creator Party.    

4. Pricing and Commissions.

4.1. Each party may establish a minimum advertised price for its Courses as set forth in the Referral Form, and the other Party will not advertise the first Party’s Courses for less than such amount. Minimum advertised prices are a unilateral policy of the respective Course owner, and do not constitute an agreement. 

4.2. For each sale made by a Selling Party in its Store of the Creator Party’s Courses, the Selling Party will pay the Creator Party a commission, as set forth in the Referral Form, on the Net Sale Price for each applicable Course.

4.3. A Party’s right to the Commission shall accrue when the fees which are the basis of the Commission stated above have been paid by the end customer. Should a customer fail to pay or should a refund be issued for any reason, no Commission will be owed on such sales to the extent of such non-payment or refund.

4.4. Within 15 days of the end of each calendar quarter, the Parties will meet to review Course sales and will provide each other with documentation from the Platform concerning the applicable Course sales. The Commissions owed to each Party will be netted against each other and the Party that generated the greater Commission will, within 30 days of such meeting and upon presentation of invoice pay the other Party such net amount. 

5. Course Removal. Each party may remove any Course from the approved Course catalog upon notice to the Selling party, and thereafter, the Selling party will cease selling such Course as soon as reasonably practicable. If a Course infringes third party rights, the Selling party will, upon request, also remove access to it by Customers who previously purchased the Course, and the Creator Party will indemnify the Selling Party against any associated costs in accordance with Section 12 of the Agreement. 

 6. Limitations on Each Party’s Actions.

6.1.  Neither Party shall represent or act or permit any person to represent or act as being authorized to bind the other Party in any way nor to act in any way that might reasonably create the impression that either Party is authorized to do so.

6.2. Each Party acknowledges that it may not sign any contract or other documentation on the other Party’s behalf (including offers and letters of intent) nor make any representations to third parties on such other Party’s behalf without such other Party’s specific authorization in writing.

7. Taxes.The Selling Party is responsible for all statutory taxes such as sales taxes and any other taxes and public charges which are or may become payable as a consequence of receiving customer payments. The Creator Party is responsible for taxes as a consequence of its receipt of a Commission. 

8. Term and Termination. This Agreement shall be effective as of the Effective Date and shall continue for a period of 12 months. Thereafter, this Agreement will automatically renew for subsequent 1 year periods; provided, however, that either Party may terminate this Agreement at any time for any reason upon 30 days’ written notice to the other Party. Notwithstanding the foregoing, each party may terminate this Agreement immediately upon notice to the other Party if it has or is reasonably likely to suffer reputational harm (i.e, any material adverse impact on a Party’s public image, brand or goodwill that could significantly harm its business). Upon termination, the Selling Party will immediately cease advertising, selling and distributing the Creator’s Party’s Courses (provided that unless Creator Party makes Selling Party whole for the cost of any refunds, Selling Party may continue to allow access to customers who purchased  Courses until the expiration of the initial Course term, or 6 months if earlier). All Commissions earned prior to the termination date will be paid in accordance with Section 4 of this Agreement. Sections 6-13 (but excluding Section 10.2) and the right to collect any Commissions due will survive the termination of this Agreement. 

9. Confidentiality.

9.1. Both Parties acknowledge that certain Confidential Information of the other Party may be disclosed to it, and agree that neither Party will disclose to any person or entity or use for its own benefit any such Confidential Information, except as otherwise specifically authorized under this Agreement.

9.2 “Confidential Information” means all information concerning or related to the business, operations, financial condition or prospects of the disclosing Party, including, without limitation: (i) all information regarding  past, present or prospective the officers, directors, employees, equity holders, customers, suppliers, distributors, sales representatives and licensees of the other Party; (ii) all inventions, discoveries, trade secrets, processes, techniques, methods, formulae, ideas and know-how of the other Party; and (iii) all financial information and business plans or forecasts of the other Party; provided that Confidential Information excludes information that: (i) was previously known by the receiving Party; (ii) is or becomes generally known to the public through no act or omission of the receiving Party; (iii) is lawfully obtained by receiving Party from a source that has no obligation of confidentiality to the disclosing Party; or (iv) is independently developed by receiving Party without use of disclosing Party’s information. If a Party in receipt of Confidential Information is subject to judicial or governmental proceedings requiring its disclosure, prior to any such disclosure, it will provide the disclosing Party with reasonable prior notice and an opportunity to obtain a protective order or confidential treatment.

9.3. The Parties acknowledge that each would be irreparably harmed if this Section 9 was breached. Accordingly, each Party is entitled to seek an injunction to prevent breaches of this Section 9 and has the right to specifically enforce this Section 9. Upon request, each Party will promptly return to the other or destroy all Confidential Information of the other Party in its possession, other than Confidential Information stored in electronic archives not readily accessible, provided it remains subject to this Section 8 for so long as it is retained. 

10. Intellectual Property.

10.1. “Intellectual Property Rights” means any patent rights, trademarks, design rights (registered or unregistered), copyright, database rights, rights of publicity, privacy and personal appearance, domain names and all similar rights in any part of the world as well as applications for the foregoing.

10.2. Each Party grants to the other Party a limited, non-exclusive, non-transferable right to use its company name, company logo and/or service names (the “Marks”) as furnished to the Other party, for the sole purpose of enabling Referral Sales, and all such usage shall be only pursuant any relevant brand guidelines furnished.

10.3. Except as stated in Section 10.2, each Party reserves all of its Intellectual Property Rights. Neither Party is granted any right, license or interest in any of the other Party’s Marks or other Intellectual Property Rights. Each Party agrees not to register or attempt to register any of the other Party’s Marks. 

10.4. Each Party warrants that (i) it has the necessary Intellectual Property Rights (or otherwise the necessary consents or licenses) to enter into this Agreement and (ii) that its respective Intellectual Property Rights do not infringe the Intellectual Property Rights of any third party.

10.4 The Parties agree that their respective service offerings may now or in the future overlap, and that nothing in this Agreement prohibits either Party from (i) competing with the other Party without use of disclosing Party’s Confidential Information or (ii) from using general ideas, concepts or knowledge arising therefrom if not separable from such Party’s overall knowledge.

11. Limitations on Liability. Except for breaches of this Agreement in relation to Sections 9 (Confidentiality) and 10 (Intellectual property) and amounts payable to a third party pursuant to Section 12 (Indemnification), (a) neither party shall be liable for any indirect or consequential loss or damages whether in contract, tort or otherwise (including negligence), including, without limitation, any direct or indirect loss of profits and (b) the total liability of each party under any theory of recover shall not exceed the total amount of Commission received by such party up to the date the liability has arisen. For breaches of this Agreement in relation to Sections 9, 10 and 11, the maximum liability shall not exceed the greater of $1 million dollars or four times the total amount of Commission received by such party up to the date the liability has arisen. Notwithstanding the foregoing, nothing in this Agreement limits a Party’s liability for its intentional misconduct. 

12. Indemnification.

12.1. Each Party (the “Indemnifying Party”) agrees to defend, indemnify and hold the other Party (the “Indemnified Party”) harmless from and against any third party claim, cost, demand, suit, or proceeding brought against the Indemnified Party arising from (a) such Party’s Courses (e.g., copyright infringement, publicity rights) or (b) any breach of this Agreement.

12.2 Indemnification Conditions. To receive indemnification: (a) the Indemnified Party must promptly notify the Indemnifying Party of any claim; provided any delay will not relieve the Indemnifying Party of its indemnification obligations except to the extent it is prejudiced thereby; (b) the Indemnified Party will reasonably cooperate with the Indemnifying Party at Indemnifying Party’s expense and (c) the Indemnifying Party will have sole authority to defend or settle any claim; provided the Indemnifying Party may not settle any claim unless it provides only for monetary relief and unconditionally releases the Indemnified Party of all liability; provided further the Indemnified Party may also defend itself at its own expense.

13. Miscellaneous. The invalidity or unenforceability of any provision of this Agreement will not affect any other provision. No partnership or joint venture is created by this Agreement. Any notices required under this Agreement are to be sent to the email or postal addresses specified in the Referral Form. Email notices are effective when acknowledged by reply email (excluding automatic responses). Postal notices must be sent via certified mail or overnight courier and are effective one day after receipt. Neither Party may assign this Agreement without the prior written consent of the other; provided it may assign all rights and obligations without consent to a successor entity to whom the business operations pursuant to this Agreement are transferred. This Agreement shall be governed by the laws of New York. The state and federal courts of New York County, NY shall be the exclusive venue for resolving any dispute between the parties, and they hereby submit to such jurisdiction and waive any objection that such courts constitute an inconvenient forum. This Agreement shall be the entire understanding between the Parties and supersedes all previous agreements, understandings or commitments between the Parties or representations made by either Party whether oral or written.

[End of Agreement]