Affiliate-Brand AmbassadorAgreement
This Agreement (this “Agreement”) is entered into by and between Diesel Enterprise dba CBD National (“Company”) and an Individual (“Affiliate”) as of the date (the “Effective Date”) the Affiliate registered on the Company’s website. (the “website). Company and Affiliate are referred to collectively as “Parties” and individually as a “Party”.
RECITALS
WHEREAS, Company is an E-Commerce platform for wellness products and hemp-derived cannabidiol (“Products”) products;
WHEREAS, Company desires to retain an Affiliate to assist Company with the promotion of Company’s goods, services, and brands as permitted by applicable federal, state, and local commercial laws and regulations;
WHEREAS, Affiliate is an individual who desires to promote Company’s goods, services, and brands as permitted by applicable federal, state, and local commercial laws and regulations;
WHEREAS, Affiliate will register on the Company website at www.cbdnational.com in order to enable their Affiliate Portal. (“Portal”)
WHEREAS Company will provide Affiliate with a unique coupon code (“Coupon Code”) and products (“Promotional Products”), which Affiliate will complete a survey, publish product reviews and promote on social media with the Affiliate’s Coupon Code;
WHEREAS, Affiliate will be eligible for a 5% net sales commission payable in the form of products or sales credits associated with sales made by buyers that have applied the Affiliate’s Coupon Code;
NOW, THEREFORE, in consideration of the promises and mutual covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
AGREEMENT
1. Services. Affiliate shall perform the following services for Company (the “Services”):
a. Post Creation. Affiliate shall create dedicated social media posts, including any
images, video or audio files, or associated content (collectively “Posts”) for publication on Affiliate’s Social Media accounts (collectively “Social Media”) as attached hereto as Addendum 1, three posts per week per platform, one product review per sample on Company’s website per month, subject to Company’s prior review and written approval. All Posts shall adhere to the following standards:
i. Company Disclosures. All Posts shall contain (a) Company’s name (“CBD National”), and (b) a statement disclosing the fact that Affiliate is not being paid for making the Post (a “Disclosure Statement”). All Disclosure Statements shall strictly comply with the Disclosure Statement Guidelines attached as Exhibit A, which is incorporated by reference.
ii. Age Verification. Prior to creating a Post, Affiliate shall obtain reliable up-to- date data regarding the age and location demographics of the audience viewing a particular advertising or marketing medium, (“Audience Composition Data”) demonstrating that at least fifty percent
(50%) of Affiliate’s audience is reasonably expected to be 21 years of age or older. Within ten (10) days of the Effective Date, Affiliate will provide Company with Audience Composition Data and
will provide Company with updated Audience Composition Data every three (3) months during the term of this Agreement.
iii. Restrictions on Posts. All Posts shall be true and accurate, and shall not contain any words, images, text, audio or video files, or any other content that implies, states, suggests, claims, or offers: (a) statements that are false or misleading; or (b) health-related statements for any
product or service offered by Company (for example, claims that any product sold by Company cures or treats pain, anxiety, insomnia/sleep disorders, inflammation, depression, acne, nausea, arthritis, etc.).
iv. Promotional Products. Posts shall feature reviews and shall promote Promotional Products and shall feature Affiliate’s Coupon Code.
b. Company Review and Approval. Affiliate shall tag company in all posts so that Company
may review. Affiliate shall modify Posts as requested by Company and tag Company for review. In the event that Company does not approve a Post, the Affiliate will either resubmit the post to Company until it is approved by Company, or remove the post.
c. Post Publication. Affiliate shall publish approved Posts on a minimum of three Social
Media Platforms. Affiliate may re-publish or publish links to approved Posts at any time, unless otherwise stated by Company. Affiliate shall not be entitled to additional compensation for re-publication of or linking to approved Posts.
d. Modification or Removal of Posts. Affiliate shall comply with any request by Company
to edit, modify, delete, or remove a Post, to delete comments or tags made on a post, or to retract, edit, or correct a Direct Communication (as defined below), immediately, but in no case more than six (6) hours after receipt of such request.
e. Direct Communications. In the event that Affiliate communicates directly with any
third-party in any medium (including, but not limited to, direct messaging, in-person, telephone, physical mail, electronic communications, or the addition of a person to a mailing list or subscription) to advertise or promote Company or any product or service offered by Company (“Direct Communication”), Affiliate shall first utilize a method of age affirmation to verify that the third-party is at least 21 years of age prior to engaging in that Direct Communication (“Age Affirmation”). The method of Age Affirmation may include user confirmation, birth date disclosure, or other similar registration method. If Affiliate is unable to obtain Age Affirmation, Affiliate shall not engage in Direct Communications. Direct Communications shall be subject to the restrictions set forth in Sections 1(a)–(d).
2. Compensation and Payment.
a. Compensation. Company shall provide Affiliate Promotional Products on a monthly basis.
addition, Company shall pay In Affiliate 5% of all net sales associated with the Affiliate’s Code (the “Commission”) This shall not include sales made by Affiliate from Company. Affiliate may elect to receive the Commission in products or store credit.
b. Expenses. Affiliate shall be solely responsible for any costs or expenses incurred by Affiliate or
any third party acting on Affiliate’s behalf in connection with the Services, unless otherwise agreed in advance in writing by Company. If Company approves costs or expenses incurred by Affiliate shall provide Company with an itemized invoice and detailed supporting receipts, no later than seven (7) calendar days after the approved costs or expenses are incurred. Company shall not be obligated to pay Affiliate for costs expenses incurred by Affiliate or on Affiliate’s behalf if Affiliate fails to timely submit itemized invoices and receipts, even if Company previously agreed to pay such costs or expenses.
c. No Withholding. All compensation paid pursuant this Agreement will constitute revenues to
Affiliate acknowledges and agrees that Affiliate shall be solely responsible for making all required tax filings and payments and agrees to indemnify and hold harmless Company for any liability, claim, expense, or other costs incurred by Company arising out of or related to Affiliate’s obligations pursuant to this provision.
3. Term. The term of this Agreement shall be 3 years from the Effective Date (the“Term”).
4. Termination.
a. Events of Termination. This Agreement will terminate upon the occurrence of any of the following. events:
i. Upon the written mutual agreement of the Parties;
ii. Upon written notice by Company to Affiliate for any reason in Company’s sole discretion;
iii. Upon the material breach of this Agreement by the Company if Company fails to cure that breach within ten (10) days after receipt of written notice by Affiliate;
iv. Upon written notice by Company to Affiliate if any federal, state, or city
governmental authority (collectively, the “Governmental Authorities”) notifies either Party that this Agreement is not in compliance with any federal, state, or city laws and/or regulations or administrative guidance issued thereunder that either Party is subject to any civil, criminal, or administrative sanctions, actions, or proceedings due to this Agreement; or in the event of a change in state or local law that renders this Agreement void, unenforceable, or unlawful. Notice from a Governmental Authority giving rise to termination of this Agreement under this Section 4(a)(iv) shall include, but not be limited to, any state, city, or federal official or departmental letters, correspondences, raids, arrests, seizures, forfeiture notice, indictment, summons, complaint or any notice of any kind from or by any federal, state, or city authorities addressed to either Party that legal action or the threat of legal action, whether civil, administrative, or criminal, is pending against either Party as a result of this Agreement.
b. Effect of Termination. The expiration or termination of this Agreement, for any reason,
shall not release either Party from any obligation or liability to the other Party that has already accrued hereunder or otherwise survives the expiration or termination of this Agreement (including, without limitation, Affiliate’s obligations set forth in Section 1(d)). Within seven (7) days after the termination or expiration of this Agreement, Affiliate shall provide Company with all Records (as defined below). Following the termination or expiration of this Agreement, Affiliate shall discontinue further publicly distributing, or otherwise making use of, the Company Marks (as defined below) in any manner, and upon Company’s request, Affiliate shall take any action necessary to provide notice to the public or any third-party that Company and Affiliate are no longer affiliated with one another.
5. Compliance with Laws. At all times during the Term, the Parties shall comply with all applicable
state, local, and federal laws, including without limitation, the Federal Trade Commission (“FTC”) Guides on endorsements and testimonials as set forth in 16 C.F.R. Part 255 and related guidance issued by the FTC (collectively, the “FTC Guidelines”). The Parties acknowledge that the FTC Guidelines, among other things, require disclosure of a material connection between an endorser and the seller of the advertised product in cases in which the connection is not reasonably expected by the audience or where the disclosure of such connection would likely affect the weight or credibility consumers give to Affiliate’s endorsement. In any Post by Affiliate during the Term, including any use of social media, Affiliate agrees to disclose Affiliate’s connection and/or contractual relationship with Company as required by the FTC Guidelines and in accordance with the Company Guidelines. If Company determines in its sole discretion that any particular Post does not comply with the FTC Guidelines or the Company Guidelines, Company reserves the right to require deletion or withdrawal of such Post, and Affiliate shall edit or delete such noncompliant or objectionable Post immediately upon notice from Company but in no event any later than twelve (12) hours after transmission of such notice. Affiliate’s failure to comply with these requirements is a material breach of this Agreement, and Company reserves the right to (i) suspend its payment obligations hereunder and/or terminate this Agreement; and/or (ii) take such other action(s) as Company determines is necessary or appropriate in its sole discretion.
6. Representations and Warranties. Affiliate represents, warrants, and covenants that: (a) Affiliate
has the power and authority to enter into this Agreement; (b) Affiliate’s execution of this Agreement does not violate any other agreement to which Affiliate is a party; (c) Affiliate will comply with federal, state, and local laws and regulations with regards to Hemp CBD when ordering, using, and promoting Promotional Products (d) the Posts will not infringe the intellectual property rights, privacy rights, or publicity rights of any third party, and will not contain defamatory, false, or misleading material; and (e) the Posts will not violate, or encourage others to violate, any applicable local, state, or federal laws or regulations.
7. Non-Disparagement; Non-Circumvention .
a. Non-Disparagement. Affiliate shall not make or publish any public statements, written
verbal, or cause or encouraorge third parties to make any public statements, written or verbal, that defame, disparage, or in any way criticize Company or the Company’s goods and services, or the business reputation, practices, or conduct of Company, or any executives, employees or representatives of Company, or any entity associated with Company. Affiliate acknowledges and agrees that this prohibition extends to statements, written or verbal, made to anyone, including but not limited to, in Affiliate’s own social media channels, the news media, investors, potential investors, any board of directors or advisory board or directors, industry analysts, competitors, strategic partners, vendors representatives clients and customers
b. Non-Circumvention. Affiliate shall not solicit, divert, contact or attempt to solicit, divert, or contact any employees, agents, volunteers, consultant, contractors, vendors, or customers of Company or intentionally or negligently damage the Company’s business opportunities or business relationships in the Prohibited Business. “Prohibited Business” shall mean the business of processing, distributing, marketing and selling of cannabidiol (“CBD”), hemp, other cannabis plant material, and any products derived from or containing CBD, hemp, or other cannabis plant material.
8. Records. Affiliate shall keep records of all Posts (including deleted posts), Audience Composition
Data, Age Affirmation data, and all communications and agreements with any person acting on Affiliate’s behalf to perform the Services (“Records”) during the Term and shall provide them to Company upon Company’s request.
9. Confidentiality. All non-public, confidential or proprietary information of Company
(“Confidential Information”), including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates disclosed by Company to Affiliate, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for Affiliate’s use in performing this Agreement and may not be disclosed or copied unless authorized by Company in writing. Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Service Provider’s breach of this Agreement; (b) is obtained by Agemt on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; or (c) Affiliate establishes by documentary evidence, was in Affiliate’s possession prior to Company disclosure hereunder. Upon Company’s request, Affiliate shall promptly return all documents and other materials received from Company. Company shall be entitled to injunctive relief for any violation of this Section.
10. Company Intellectual Property.
a. Company Marks. Company grants Affiliate a limited, non-exclusive, non-
transferable,non-sub-licensable, revocable right to use the trade name, trademarks, logos, Posts and other indicia of Company,
including, but not limited to, the name, logo, and other indicia of the Company brand (collectively, the “Company Marks”), solely for use in the Posts or Direct Communications. Upon written notice by Company, Affiliate agrees to discontinue further publicly distributing, or otherwise making use of, the Company Marks in any manner. Except as set forth above, no license or other right of any kind to the Company Marks or any other intellectual property rights of Company is granted to Affiliate, all of which shall remain the sole and exclusive property of Company. Affiliate acknowledges and agrees that all benefits and goodwill associated with any uses of the Company Marks shall inure to the benefit of Company
b. Affiliate hereby grants to Company, its parent, subsidiaries, affiliates, assigns, successors,
and heirs, as well as their representatives, agents, employees, contractors, and anyone else authorized by Company, a worldwide, royalty-free license to reproduce, distribute, exhibit, display, perform, publicize, and otherwise use the Posts, as well as Affiliate’s name, photographs or other likeness, social media usernames, handles, avatars, biographical information, trademarks, service marks, logos, or anything else that identifies Affiliate (collectively, “Affiliate Marks and Likeness”), in connection with the Posts and Affiliate’s affiliation with Company, to advertise and promote Company and its products and services (“Products”), in any and all media, now or hereafter known.
Without limiting the generality of the foregoing, Company will have the right to republish the Posts, amplify the Posts with paid media, and add a link from Company’s websites to Affiliate’s blog site or social media pages as well as modify the Posts without restriction, by editing, retouching, airbrushing, adding to, subtracting from, or combining the Posts with other material, in its sole discretion. The foregoing rights and license shall terminate upon termination of this Agreement; however, after the Term, Company will have no obligation to delete, remove, or modify any social media posts published by Company during the Term that include, link to, or otherwise reference the Posts or Affiliate Marks and Likeness.
c. Work Product. During the Term, Company and its directors, officers, employees, or
other representatives (if any) may, independently or in conjunction with Affiliate, develop information, produce work product, or achieve other results for Affiliate in connection with the Services. Affiliate agrees that any such information, work product, and other results, systems and information developed by Company and/or Affiliate in connection with the Services (hereinafter referred to collectively as the “Work Product”) shall remain the sole and exclusive property of Company.
d. Ownership of Posts. Company is and will be the sole and exclusive owner of all right,
title, and interest in and to the Posts, including all copyrights and other intellectual property rights therein. We will own each Post as a work made for hire as defined in Section 101 of the Copyright Act of 1976. To the extent any Post does not qualify as, or otherwise fails to be, work made for hire, you hereby (a) assign, transfer, and otherwise convey to us, irrevocably and in perpetuity, throughout the universe, all right, title, and interest in and to the Posts, including all copyrights and other intellectual property rights in them; and (b) irrevocably waive any and all claims you may now or hereafter have in any jurisdiction to so-called “moral rights” with respect to the Posts.
11. Disclosures. To the extent that Company is required to disclose this Agreement; any Records,
Post, or Direct Communication; or the relationship between Affiliate and Company to any Governmental Authority, Affiliate shall provide reasonable and prompt assistance, information, and documents to Company upon Company’s request.
12. Indemnification.
a. Indemnification. Affiliate shall defend, indemnify, hold harmless, and insure the
Companyand its officers, directors, members, employees and agents for and from any and all claims, actions, proceedings, fines, damages, liabilities, costs and expenses of every kind, whether known or unknown, including but not limited to reasonable attorney’s fees, resulting from or arising out of, (a) any negligence or misconduct on the part of the Affiliate, (b) any breach of any representation, warranty, covenant, or obligation of Affiliate set forth in this Agreement, or any default of this Agreement that is caused by Affiliate, and (c) any violation of any applicable law or regulation by the Affiliate or its employees or agents (each an “Indemnified Event”). Affiliate will take all actions necessary to
b. Intellectual Property Indemnification. Affiliate shall defend and indemnify the Company
and its officers, directors, members, employees and agents for, from, and against any and all claims, actions, proceedings, damages, liabilities, and expenses of every kind, whether known or unknown, including but not limited to reasonable attorney’s fees, resulting from or arising out of any claim that the Services, Deliverables, Work Product or Affiliate Intellectual Property infringes any Copyright, patent, or Trademark, constitutes a misappropriation of any trade secret, or violates any other Intellectual Property or proprietary right of any person or entity, but not to the extent that the claim results from or arises out of (a) the Company’s combination of the Services or Affiliate Intellectual Property with any service or product not provided by Affiliate, where the infringement, misappropriation, or violation would not have occurred but for the combination, or (b) the Company’s modification of the Services or Affiliate Intellectual Property, where the infringement, misappropriation, or violation would not have occurred but for
c. Cooperation. In addition to and without in any way limiting the indemnification
obligations of Affiliate set forth in this Agreement, Affiliate (including its employees and subcontractors) expressly agrees that in the event that the Company is subject to any investigation or enforcement action by any governmental authority or agency that is related to any Indemnified Event, Affiliate (including its employees and subcontractors) shall cooperate fully with the Company in all efforts by the Company to avoid adverse action against the Company by any such governmental authority or agency with respect to the License or otherwise. Such cooperation shall include, but not be limited to, providing all documents, declarations, or other statements requested by the Company in connection with the Company’s defense of any enforcement or other adverse action or investigation by any government agency or instrumentality against or in connection with the Company.
13. Release. Affiliate releases, discharges, and agrees to hold harmless the Company Indemnified
Parties from any and all liability related to (i) Affiliate’s performance of Affiliate’s obligations hereunder, including any personal injury, physical or mental disability, or property damage or death sustained by Affiliate in connection with the use of the Products; and (ii) the use of the Posts by Company in accordance with the terms hereof, including but not limited to any liability for what might be deemed to be misrepresentation or defamation of Affiliate Affiliate’s character
or person due to distortion, optical illusion, or otherwise. Affiliate acknowledges that some social media companies do not permit the promotion of any cannabis products, including Hemp CBD. Affiliate releases Company from any liability related to the suspension or termination of any of Affiliate’s social media account as a result of this Agreement
14. Limitation of Liability. In no event shall either Party be liable to each other for any special, incidental, consequential, or punitive damages arising out of this agreement or its termination, whether liability is asserted in contract, tort (including negligence), strict liability, or otherwise, and irrespective of whether such Party has been advised of the possibility of any such loss or damage.
15. Independent Contractor Relationship. In the performance of the work, duties, and obligations
under this Agreement, Affiliate is acting and performing as an independent contractor and not an employee of Company. Company will neither have nor exercise any control or direction over the methods by which Affiliate performs his or her work and functions, that Affiliate does, by this Agreement, agree that Affiliate will perform his or her work and functions at all times in strict accordance with currently approved methods and practices and in accordance with the requirements set forth herein. The sole interest of Company is to ensure that the Services are performed in a competent, efficient, and satisfactory manner. No relationship of employer and employee is created
by this Agreement and Affiliate nor anyone performing services for Affiliate pursuant to this Agreement, whether as an employee independent contractor subcontractor or otherwise shall have any claim under this Agreement or otherwise against Company for vacation pay, sick leave, retirement benefits, Social Security, workers’ compensation, disability, or unemployment benefits.
16. Miscellaneous.
a. Remedies. The Parties will have all remedies available to them at law or in equity. All available remedies are cumulative and may be exercised singularly or concurrently.
b. Arbitration. Any controversy or claim arising out of or relating to this Agreement
including, without limitation, the making, performance, or interpretation of this Agreement, shall be resolved by arbitration using a single arbitrator. This arbitration shall be conducted in Portland, Oregon in accordance the then current rules of the Arbitration Service of Portland. The Parties agree that the arbitrator shall have no jurisdiction to consider evidence with respect to or render and award or judgment for punitive damages or any other amount awarded for the purpose of penalty.
c. Venue. Any action, suit, or proceeding arising out of the subject matter of this
Agreement will, to the extent that it may be initiated other than through arbitration (e.g. motion to compel arbitration), be litigated in courts located in Multnomah County, Oregon. Each Party consents and submits to the jurisdiction of any local, state, or federal court located in Multnomah County, Oregon.
d. Notices. All notices required or permitted under this Agreement will be deemed
delivered when delivered personally, mailed, by certified mail, return receipt requested, or registered mail, or sent by a nationally recognized overnight courier to the respective Party at the following addresses or to such other address as each respective Party may in writing hereafter designate:
To Company:
Diesel Enterprise dba CBD National PO Box 1012, Phoenix Oregon 97535 Diesel@cbdnational.com
To Affiliate:
Name, Address & Email as registered on Company website.
e. Amendment and Waiver. This Agreement may not be altered, modified, or waived in
whole or in part, except in writing, signed by the Parties. No failure or delay by either Party in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy.
f. Severability. Each provision of this Agreement shall be treated as a separate and
independent clause, and the unenforceability of any one clause shall in no way impair the enforceability of nay of the other causes herein.
g. Entire Agreement. This Agreement contains the entire understanding of the Parties
regarding the subject matter of this Agreement and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the Parties with respect to the subject matter of this Agreement.
h. No Third-Party Beneficiaries. This Agreement shall inure to the benefit of and be
binding upon the Parties and their respective legal representatives, successors, and permitted assigns. Except as otherwise provided herein, nothing in this Agreement, express or implied, is intended to confer on any Person other than the Parties (or their respective legal representatives, successors, and permitted assigns) any rights, remedies, obligations or liabilities under or by reason of this Agreement.
i. Survival. All provisions of this Agreement that would reasonably be expected to survive the termination of this Agreement will do so, including but not limited to Sections 4–15.
j. Assignment. Company may freely sell, convey, assign, or license, in whole or in part,
this Agreement and any of all of its rights rights, titles, properties, and interests This Agreement shall insure to the benefit of of the successors, personal representatives, heirs, and assigns of Company. This Agreement and all rights and duties hereunder are personal to Affiliate and Affiliate may not assign or delegate any responsibilities under this Agreement without the prior written consent of Company.
k. Headings. The title of and paragraph or section titles used in this Agreement shall in no
manner modify, expand, limit, explain, construe, describe the scope of or intent of, or in any way affect the terms and conditions of this Agreement.
l. Governing Law. This Agreement shall in all respects be governed and controlled by the laws of the State of Oregon.
m. Counterparts. This Agreement may be signed in counterparts and by facsimile, each of which shall be deemed an original and all of which together shall be deemed one and the same
instrument. IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
EXHIBIT A
DISCLOSURE STATEMENT GUIDELINES
These Disclosure Statement Guidelines incorporate the same definitions as the Affiliate-Brand Ambassador Agreement between you and Diesel Enterprise DBA CBD National.
Each Post—as well as any other mention or reference of Company—must include a Disclosure Statement. You must also include Disclosure Statements within each image, audio, video, or other file associated with a Post. For example, if you create an image and publish that image on Twitter with additional text, the image and the Tweet must contain a Disclosure Statement.
If social media platforms allow you to disclose financial relationships by marking “Paid” or “Promoted” in connection with a Post, you must do so in each Post. You must also, with or without a hashtag, include at least one of the following words: “ad, advertisement, advertising, paid, promotion, promoted, sponsored, or spokesperson.”
If any of these words are used in connection with a Post, they must be separated by a space, period, or underscore from the words “CBD National”. For example: “CBDNational.Promotion” or “CBD National Advertisement”. There is flexibility as long as the disclosure is unambiguous and understandable.
Disclosure Statements should be placed as follows:
• Twitter: Anywhere within a tweet but if included with other hashtags, “@” mentions, or web links, the disclosure should be placed at the beginning of the hashtag string.
• Instagram: Within the first three lines of the written post before a reader needs to click “read more” to see the disclosure. As with Twitter, place the disclosure at the beginning of any hashtag strings.
• Instagram Stories/Videos and Snapchat: Mentioned audibly in the video or superimposed on the picture. The disclosure should be easy to hear or read, and notice and understand in the time the image is audible or visible on the screen.
• Facebook: Near the beginning of the post before a reader needs to click “read more” to see the disclosure. As with Twitter, place the disclosure at the beginning of any hashtag strings.
• YouTube or other video posts: In the video itself (rather than only in any accompanying text); and at the beginning of the text/caption.
For more information on federal disclosure statement guidelines see https://www.ftc.gov/tips-advice/business- center/guidance/ftcs-endorsement-guides-what-people-are-asking which are incorporated herein by this reference.
Are you at least 21?