Affiliate Partner Agreement

This Affiliate Partner​ Agreement (this “Agreement​”) between Daxko, LLC dba Zen Planner, including its direct and indirect subsidiaries (the “Company​ ”) and the entity or individual indicated in the acknowledgement hereto (“Affiliate”​ ​) is effective as of acknowledgment by the affiliate (the “​Effective Date”). The Company and Affiliate may be referred to in this Agreement singly as a “​Party​”, or together as the “​Parties​”.

Background: The Company is in the business of creating and distributing software and associated services to a range of end users including gyms, individuals, and other people and entities in the health and wellness industry (each a, “Customer​”). The Affiliate wishes to partner with Company to refer Customers to Company on the terms and conditions of this Agreement.

NOW, THEREFORE​, in consideration of the mutual promises contained herein, and intending to be legally bound, the Parties agree as follows:
1. Obligations of the Parties.

(a) Affiliate Obligations - Promotion - Affiliate shall refer net new business to Company using an affiliate link to engage Customer in Company’s sales process. Affiliate agrees to conduct itself in a way that reflects positively on company.
Affiliate Partner agrees to uphold the following standards of conduct:
· Accurate Representation: Affiliate will represent Company truthfully and accurately without making false claims or guarantees.
· Professional Conduct: Affiliate shall conduct themselves professionally in all communications and avoid aggressive or misleading promotional tactics.
· Compliance with Laws: Affiliate agrees to comply with all applicable laws and regulations, including FTC guidelines for affiliate marketing, by disclosing their affiliation with Company.
· Brand Integrity: Affiliate agrees to promote Company in a way that maintains the brand’s integrity and reputation.
· Prohibited Practices: Affiliate agrees not to engage in any of the following:
o Spamming or unsolicited email campaigns
o Misleading claims or fraudulent activities
o Paid advertising using Company brand names, unless explicitly approved
o Promoting or associating with competitors of Company during the term of this Agreement
o AFFILIATE AGREES NOT TO POST OR TRANSMIT ANY UNLAWFUL, HARMFUL, THREATENING, ABUSIVE, HARASSING, DEFAMATORY, VULGAR, OBSCENE, PROFANE, HATEFUL, FRAUDULENT, LIBELOUS, PORNOGRAPHIC, RACIALLY, ETHNICALLY OR OTHERWISE OBJECTIONABLE MATERIAL OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY MATERIAL WHICH ENCOURAGES CONDUCT THAT WOULD CONSTITUTE A CRIMINAL OFFENSE, VIOLATE THE RIGHTS OF OTHERS, OR OTHERWISE VIOLATE ANY APPLICABLE LOCAL, STATE, NATIONAL OR INTERNATIONAL LAW ("PROHIBITED MATERIAL").

(b) Company Obligations – For any potential Customers referred by Affiliate using the affiliate link provided, Company will utilize commercially reasonable efforts to onboard such perspective Customer onto subscription bearing Company services, provided however that Company may, in its sole and absolute discretion, decline to provide services to any referred account either before or after such Customer or potential Customer onboards or implements Company services.

2. Pricing and Payment​. The compensation due to Affiliate under this Agreement shall be set forth on
Schedule A​, which is incorporated herein by reference. Compensation shall be expressed as a percentage of cash received from the Customer (the “​Fee​”) to subscribe for or otherwise purchase any Zen Planner software from Company as a direct and proximate result of Affiliate’s referral of such Customer using the Affiliate link provided by Company. Affiliate shall not be entitled to reimbursement of costs incurred in pursuing such referrals, if any. Company will remit electronic payment to Affiliate’s designated account within sixty days of the closing of the billing month in which cash is received by Company for eligible subscription payments. Affiliate shall not be entitled to compensation for any subscription payments collected by Company on referred accounts exceeding twelve months in collective length. Affiliate shall not be entitled to compensation for any subscription payments made by a Customer who was, in the three months prior to referral by Affiliate, already a paying customer of Company or for a prospective Customer that was already in Company’s sales processes.

1. Representations and Warranties of Affiliate. Affiliate hereby represents and warrants that: that the execution and performance of this Agreement (a) does not and will not violate or interfere with any other agreement to which it is a party; (b) it is duly organized and in good standing under the laws of the jurisdiction of its incorporation or existence; (c) it has all right, power, and authority to enter into and perform this Agreement; (d) Affiliate will refrain from public conduct (either on or off Company’s Platform) that, in Company’s sole discretion, reflects negatively upon Company or that potentially creates damage to Company’s goodwill.

2. Non-Solicitation​. To protect the Company’s Confidential Information, Affiliate agrees that during the Term of this Agreement and for a period of one year after the termination date of this Agreement, Affiliate will not (a) directly or indirectly solicit or induce any employee of the Company to terminate or negatively alter his or her relationship with the Company or (b) directly or indirectly solicit the business of any client or customer of the Company (other than on behalf of the Company) to purchase goods or services competitive in any way with Company, or (c) directly or indirectly induce any client, customer, supplier, Affiliate, Affiliate or independent contractor of the Company to terminate or negatively alter his, her or its relationship with the Company. If any restriction set forth in this Section is found by any court of competent jurisdiction to be unenforceable because it extends for too long a period of time or over too great a range of activities or in too broad a geographic area, it shall be interpreted to extend only over the maximum period of time, range of activities or geographic area as to which it may be enforceable.

3. Confidential Information.​ From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, "Confidential​Information​"). Confidential Information shall not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) independently developed by the receiving party without reference to the disclosing party’s Confidential Information, or (c) rightfully obtained by receiving party on a non-confidential basis from a third party. The receiving party shall not (i) use the Confidential Information of the other Party except for the fulfillment of such Party’s obligations under this Agreement or (ii) disclose any such Confidential Information to any person or entity, except to the receiving party's employees who have a need to know the Confidential Information for the receiving party to perform its obligations hereunder. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed.

4. Relationship of the Parties. Affiliate’s relationship with Company will be that of an independent contractor, and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Affiliate (a) is not the agent of Company; (b) is not authorized to make any representation, contract, or commitment on behalf of Company; (c) will not be entitled to any of the benefits that Company makes available to its employees, such as group insurance, profit-sharing or retirement benefits (and waives the right to receive any such benefits); and (d) will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Affiliate’s performance of services and receipt of fees under this Agreement. If applicable, Company will report amounts paid to Affiliate by filing Form 1099-MISC with the Internal Revenue Service, as required by law. Affiliate agrees to accept exclusive liability for complying with all applicable state and federal laws, including laws governing self-employed individuals, if applicable, such as laws related to payment of taxes, social security, disability, and other contributions based on fees paid to Affiliate under this Agreement. Company will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Affiliate’s behalf. Affiliate hereby agrees to indemnify and defend Company against any and all such taxes or contributions, including penalties and interest. Affiliate agrees to provide proof of payment of appropriate taxes on any fees paid to Affiliate under this Agreement upon reasonable request of Company.

5. Term and Termination​.

(a) This Agreement will begin on the Effective Date and continue for a period of twelve (12) months (the "​Initial Term​").
(b) Following the Initial Term, unless written notice of intent not to renew is provided by either party at least sixty (60) days prior to the scheduled expiration date of the then current term, this Agreement shall be automatically renewed for successive twelve (12) month additional terms (the Initial Term and any successor renewal term is referred to as the “​Term​”).
(c) All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
(d) Without limiting the foregoing, during any period when notice of non-renewal or termination has been delivered, the Parties agree to continue to perform their respective obligations hereunder through the end of such notice period.
(e) Company shall have the right to terminate this Agreement immediately upon written notice to Affiliate in the event that Company determines, in its reasonable discretion.

6. Dispute Resolution. This Agreement shall be governed by and construed in accordance with the laws of the State of Alabama, excluding the conflicts of law provisions thereof. The parties agree that any disputes among them arising from or related to this Agreement shall be resolved by binding arbitration conducted under the auspices of the American Arbitration Association in a mutually agreed upon location. The parties shall each be responsible for initial payment of one-half of any arbitration fees, but upon final resolution the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs. Notwithstanding the foregoing arbitration provision, Affiliate acknowledges that a breach or threatened breach of this Agreement by Affiliate or its representatives may cause irreparable harm to Company for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Affiliate or its representatives, Company shall, in addition to any and all other rights and remedies that may be available at law (which Company does not waive by the exercise of any rights hereunder), be entitled to seek a temporary restraining order, injunction, specific performance and any other equitable relief that may be available from a court of competent jurisdiction, and the parties hereby waive any requirement for the securing or posting of any bond or the showing of actual monetary damages in connection with such claim.

7. Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

8. Assignment. The Company will have the right at all times to assign any of its rights or obligations under this Agreement without Affiliate’s consent. The Affiliate’s rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by Affiliate without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The terms of this Agreement shall be binding upon assignees.

9. Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed delivered when delivered in person or deposited in the United States mail, postage prepaid, or via a recognized national overnight delivery service addressed to:
Daxko, LLC
600 University Park Place, Suite 500

Birmingham, AL 35209

Attn: Legal Department

[email protected]

Such addresses may be changed from time to time by either party by providing written notice to the other in the manner set forth above.

10. Waiver. 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.

11. Export Control. Affiliate will not export, directly or indirectly, any technical data or Solution received from Company to any country or end user for which the U.S. Government requires an export license or other government approval without first obtaining such license or approval.

12. Marketing; Publicity. Affiliate consents to publication of its name by Company as an Affiliate of the Program or any applicable component thereof. Company authorizes Affiliate to include in its marketing or product distributions those marketing materials about the Company products that Company has prepared and provided to Affiliate for this purpose. Affiliate shall not alter, modify, or otherwise change any material provided to it by Company without written consent. Each party hereto must pre-approve in writing any press releases, announcements, or similar materials mentioning this Agreement, the parties’ relationship and/or any Program, and except as set forth above each party hereto shall have sole authority to approve the use of its name in any marketing or other materials submitted to any public source.

13. Indemnity. Affiliate shall defend, indemnify and hold Company harmless against any loss, damage or costs (including reasonable attorneys' fees) incurred in connection with Claims made or brought against Company by a third party alleging: (i) that any data, materials or information provided by Affiliate, or Affiliate’s use of the Program or referral of the products in violation of this Agreement, or Affiliate’s products or services, including Affiliate’s offerings or services listed on the Company Marketplace, if any, infringes, misappropriates or violates any intellectual property rights of, or has otherwise violated applicable law with respect to, a third party; (ii) Affiliate's breach of any representation, warranty, or agreement relating to Affiliate’s products and services, if any, including any listed on the Company Marketplace; (iii) a breach of any warranty or representation made by Affiliate or its agents related to the Company Solution or Technical Services that differs from the warranty provided by Company for the relevant service or Solution or (iv) ) any loss or liability associated with a security breach or arising from a failure to comply with regulations or laws related to privacy, data protection, confidentiality or security of personal information. Affiliate aggress to indemnify Company provided that, that Company must (a) promptly give Affiliate written notice of the Claim; (b) give Affiliate sole control of the defense and settlement of the Claim (provided that Affiliate may not settle any Claim without the prior written consent of Company unless it unconditionally releases Company of all liability); and (c) provide to Affiliate all reasonable assistance with such matter(s). Affiliate shall cooperate with Company in regard to any inquiry, dispute or controversy in which Company may become involved and in relation to which Affiliate may have knowledge. Such cooperation shall include disclosure of relevant documents and financial information, and interviews of Affiliate’s personnel.

14. Intellectual Property. Any Company products (including any associated documents and designs) provided to Affiliate, and all intellectual property rights therein, shall remain the sole and exclusive property of Company and its licensors.

15. Limitations of Liability. Except with respect to indemnification obligations hereunder, in no event shall either party be liable to the other party for any incidental, indirect, special, consequential or punitive damages, regardless of the nature of the claim, including, without limitation, lost profits, business interruption, lost or damaged data or documentation or liabilities to third parties arising from any source, even if such party has been advised of the possibility of such damages. This limitation is intended to apply without regard to whether other provisions of this Agreement have been breached or have proven ineffective. The cumulative liability of Company to Affiliate for all claims arising from or relating to this Agreement including, without limitation, any cause of action sounding in contract, tort, or strict liability, shall not exceed the greater of (i) all commissions and royalties paid or payable by Company to Affiliate under this Agreement or (ii) the total amount of all fees having been paid to Company by Affiliate under this Agreement, in each case during the 12-month period preceding the event giving rise to the relevant liability. The disclaimers, exclusions and limitations of liability set forth in this Agreement form an essential basis of the bargain between the Parties and shall apply notwithstanding the failure of their essential purpose.

16. Entire Agreement. This Agreement, combined with the Background paragraph above, and any Exhibits or other attachments, where are incorporated by reference, is the final, complete and exclusive agreement of the Parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by Affiliate and Company. The terms of this Agreement will govern all services undertaken by Affiliate with Company.