Last modified: May 1, 2023

1. Independent Contractor Relationship.

Promoter’s relationship with Company is that of an independent contractor, and nothing in this Agreement is intended to, or shall be construed to create a partnership, agency, joint venture, employment, or similar relationship. Promoter will not be entitled to any of the benefits that Company may make available to its employees, including, but not limited to, group health or life insurance, profit-sharing or retirement benefits. Promoter is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state, or local tax authority with respect to the performance of services and receipt of Royalties (or any other compensation) under this Agreement. Promoter is solely responsible for, and must maintain adequate records of, expenses incurred while performing services under this Agreement. No part of Promoter’s compensation will be subject to withholding by Company for the payment of any social security, federal, state, or any other employee payroll taxes, provided that Company may withhold from payments from Promoter as required by law. Company will regularly report amounts paid to Promoter by filing Form 1099-MISC with the Internal Revenue Service as required by law. You agree to complete any tax reporting forms requested by Company prior to receiving payment under this Agreement.

2. Multiple Promoters.

If Promoter consists of more than one person or entity, then Company may take direction from any of the Promoters and such decisions shall be binding on all of the Promoters or Company may require that all Promoters agree prior to taking any action. Each person that makes up Promoter agrees that they are jointly and severally liable for all obligations of Promoter under this Agreement.

3. Ownership of Work Product.

Company shall own the content and materials (including text, videos, audio, and photos) you create under the Agreement or as a Promoter or otherwise in connection with the School, the Company, the App, the Website, or the Platform (collectively, “Work Product”). You hereby assign to Company all right, title, and interest in and to such Work Product (the “Rights”). The Rights shall include without limitation all ownership and exploitation rights now or hereafter recognized in all territories and jurisdictions throughout the universe in perpetuity in all media, markets, and languages and in any manner now known or hereafter devised. Company shall have the sole and absolute right to register its copyright in the Work Product and to obtain renewals of such copyright and such other protection as Company may deem necessary. To the fullest extent allowable under any applicable law, you hereby irrevocably waive or assign to Company your so-called “moral rights” or “droit morale,” including, but not limited to, any right to approve any changes or revisions in the Work Product and/or the right to withdraw the Work Product from distribution. Upon request, you shall execute, acknowledge, and deliver to Company any and all documents Company may deem necessary to evidence and effectuate all or any of Company’s rights under this Agreement. Promoter hereby irrevocably appoints Company as attorney-in-fact with full power to execute, acknowledge, deliver, and record in the U.S. Copyright Office or elsewhere any and all such documents that you fail to execute, acknowledge, and deliver. The appointment shall be a power coupled with an interest.

4. Use of Your Name, Likeness, and Information.

You hereby grant to Company and our affiliates, and each of our respective direct and indirect successors, licensees, and assigns, the right to use your name, image, likeness, and biographical, professional, and other identifying information (including information you provide to us and any other information about you that is publicly available) (collectively, “Likeness”) in connection with Company and Company’s business including the School, the Company, the App, the Website, and the Platform. You waive the right to inspect or approve any use of your Likeness as contemplated in this Agreement.

5. Confidentiality.

1. Definition of Confidential Information. “Confidential Information” means (a) any technical and non-technical information related to Company’s business and current, future and proposed products and services of Company, including for example and without limitation, source code, Company Property (as defined below), and information concerning research, development, design details and specifications, financial information, sales information, marketing/brand strategies, marketing plans and business plans, in each case whether or not marked as “confidential” or “proprietary” and (b) any information that Company has received from others that may be made known to Promoter and that Company is obligated to treat as confidential or proprietary, whether or not marked as “confidential” or “proprietary”.
2. Nondisclosure and Nonuse Obligations. Except as permitted in this Section, Promoter will not (i) use any Confidential Information or (ii) disseminate or in any way disclose the Confidential Information to any person, firm, business or governmental agency or department. Promoter may use the Confidential Information solely to perform under the Agreement for the benefit of Company. Promoter shall disclose Confidential Information only to those of Promoter’s employees who have a need to know the information as necessary for Promoter to perform this Agreement. Promoter certifies that each of its employees will have agreed, either as a condition of employment or to obtain the Confidential Information, to be bound by terms and conditions at least as protective as those terms and conditions applicable to Promoter under this Agreement. Promoter shall immediately give notice to Company of any unauthorized use or disclosure of the Confidential Information. Promoter shall assist Company in remedying any unauthorized use or disclosure of the Confidential Information. Promoter agrees not to communicate any information to Company in violation of the proprietary rights of any third party.
3. Exclusions from Nondisclosure and Nonuse Obligations. Promoter’s obligations under this Section do not apply to any Confidential Information that Promoter can demonstrate (a) was in the public domain at or subsequent to the time the Confidential Information was communicated to Promoter by Company through no fault of Promoter; (b) was rightfully in Promoter’s possession free of any obligation of confidence at or subsequent to the time the Confidential Information was communicated to Promoter by Company; or (c) was independently developed by Promoter or employees of Promoter without use of, or reference to, any Confidential Information communicated to Promoter by Company. A disclosure of any Confidential Information by Promoter (a) in response to a valid order by a court or other governmental body or (b) as otherwise required by law will not be considered a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, that Promoter provides prompt prior written notice thereof to Company to enable Company to seek a protective order or otherwise prevent the disclosure, and Promoter assists Company in such protective order.

6. Ownership and Return of Confidential Information and Company Property.

All Confidential Information and any materials and items (including, without limitation, source code, software, equipment, tools, artwork, documents, plans, drawings, papers, diskettes, tapes, models, apparatus, sketches, designs and lists) that Company furnishes to Promoter, whether delivered to Promoter by Company or made by Promoter in the performance of services under this Agreement and whether or not they contain or disclose Confidential Information (collectively, the “Company Property”), are the sole and exclusive property of Company. Promoter agrees to keep all Company Property at Promoter’s premises unless otherwise permitted in writing by Company. Within five days after any request by Company, Promoter shall destroy or deliver to Company, at Company’s option, (a) all Company Property and (b) all materials and items in Promoter’s possession or control that contain or disclose any Confidential Information. Promoter will provide Company a written certification of Promoter’s compliance with Promoter’s obligations under this Section.

7. Company Decisions.

Company shall have final say on all aspects of (including all content on) the Website, the Platform, and the App, including when School (or any other school) launches and when the School (or any other school) is temporarily or permanently removed from the App as well as any changes that must be made to the School, all in Company’s sole and absolute discretion. Promoter shall also promptly and professionally respond to any requests or complaints from Users relating to Posts or any Promoter activity. Promoter must make any changes that have legal consequences immediately. Company shall control all aspect of pricing for the Website, the Platform, the App and the School, and all other products and services of Company and may make changes to such pricing whenever it likes. This includes whether to charge (and how much to charge) for any school (including School) or any other product or service, and may include differentiated pricing by User (including some Users receiving free or discounted subscriptions), differentiated pricing between schools, providing for subscription packages with multiple schools (or all schools) and any other pricing Company desires. Company make alter the amount that Company pays Promoter under the Agreement and Company’s count on Paid Users (and other financial matters) is final and may be based on reasonable estimates. Company owns all right title and interest in and to (including all content on) the App, the Platform, the School (and all other schools), and all of its other products/services and can make whatever edits, modifications, additions and removals it so desires to any and all of the same.

8. Tracking Codes:

Company may provide Promoter and others with separate tracking codes so that Company can identify where Users of the School originate from. Promoter agrees to implement such tracking codes. For any payments owed to Promoter based on the traffic delivered, failure to use a Company provided tracking code will result in no payment for any Paid Users coming from that source. If for any reason Company is incapable of tracking where some or all Paid Users originated from, then Company may use whatever method(s) it deems reasonable.

9. Representations, Warranties, and Covenants.

Promoter represents, warrants and covenants that (a) it will perform the Services in a professional and timely manner; (b) in performing the Services, Promoter will comply with all applicable laws and governmental rules, regulations, and guidelines and will not infringe or violate the intellectual property rights or personal or privacy rights of any third party; (c) it will only make factual statements about Company and Company’s products or services that Promoter knows are true and can be verified; and (d) will not disparage Company or any of Company’s products or services.

10. Indemnification.

Promoter will indemnify, defend, and hold harmless Company and its officers directors, employees, agents, successors and assigns from and against any and all third party claims, suits, actions, demands, and proceedings against Company and all losses, costs and liabilities related thereto (including attorneys’ fees and costs) arising out of or related to (i) any allegation that the Services (including Posts) or any activity or material by Promoter under this Agreement infringes any intellectual property rights or publicity rights of a third party or (ii) any negligence by Promoter or any other act or omission of Promoter, including without limitation any breach by Promoter of any representation, warranty, covenant, or obligation of Promoter under this Agreement. Company reserves the right, at Promoter’s expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by Promoter, in which event Promoter will cooperate with Company in asserting any available defenses.

11. Successors and Assigns.

Promoter shall not assign its rights or delegate any performance under this Agreement without the prior written consent of Company. For the avoidance of doubt, Promoter may not subcontract or delegate performance of any services under this Agreement to any other person (including to any contractor or other Promoter) without Company’s prior written consent. This Agreement will be for the benefit of Company’s successors and assigns and will be binding on Promoter’s permitted assignees.

12. DISCLAIMER.

1. THE PLATFORM IS MADE AVAILABLE TO PROMOTER ON AN “AS IS” BASIS, WITH NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, TITLE OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
2. COMPANY MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING THE NUMBER OF PAID USERS THE SCHOOL MAY ATTRACT OR ANY ROYALTIES OR TOTAL AMOUNTS PROMOTER MAY EARN UNDER THIS AGREEMENT.

13. Limitations of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES SUFFERED BY PROMOTER (INCLUDING WITHOUT LIMITATION DAMAGES FOR HARM TO BUSINESS, LOST REVENUES, LOST SAVINGS OR LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, OR TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE OF ANY KIND WHETHER ACTIVE OR PASSIVE, AND REGARDLESS OF WHETHER PROMOTER KNEW OF THE POSSIBILITY THAT SUCH DAMAGES COULD RESULT. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY’S CUMULATIVE, AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE GREATER OF (I) $1,000 AND (II) THE AMOUNTS OWED TO PROMOTER UNDER THIS AGREEMENT.

14. Injunctive Relief.

Promoter’s obligations under this Agreement are of a unique character that gives them particular value; Promoter’s breach of any of these obligations will cause irreparable and continuing damage to Company for which money damages are insufficient, and Company is entitled to seek injunctive relief, a decree for specific performance, and all other relief as may be proper (including money damages if appropriate), without the need to post a bond.

15. Notices.

Any notice required or permitted to be made or given by any party pursuant to this Agreement will be deemed sufficiently made and received by the other party: (a) if personally delivered, on the date of delivery; (b) if sent by email on the next business day after the date of transmission, or (c) if sent by express courier, such as FedEx or DHL, on the date of delivery as shown in the delivery confirmation. Such delivery shall be by personal delivery, email, or express courier to the address provided to Company or such other address as Company has on file for Promoter.

16. Governing Law; Forum.

The laws of the United States of America and the State of California govern all matters arising out of or relating to this Agreement without giving effect to any conflict of law principles. To the extent that any lawsuit is permitted under this Agreement, each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Los Angeles County, California, as applicable, for any matter arising out of or relating to this Agreement. Notwithstanding the foregoing, a claim for equitable relief arising out of or related to this Agreement may be brought in any court of competent jurisdiction.

17. Arbitration.

Any controversy or claim arising out of or relating to or resulting from this Agreement, including the termination of this Agreement and any breach of this Agreement, shall be resolved by binding arbitration under the Arbitration Rules (the “Rules”) set forth in the California Code of Civil Procedure Section 1280 through 1294.2, including Section 1283.05 and pursuant to California law. Any arbitration will be administered by the American Arbitration Association (“AAA”) and the number of arbitrators shall be one. Judgment on the award rendered by the arbitrator shall be final and binding and may be entered in any court having jurisdiction thereof. The Parties agree that any arbitration will be administered by the AAA, and that a neutral arbitrator will be mutually agreed upon by the parties, and if no agreement can be reached within thirty (30) days after names of potential arbitrators have been proposed by the AAA, then by one arbitrator having reasonable experience in commercial matters involving mobile applications and social media who shall be chosen by the AAA. The arbitration will take place in Los Angeles County, California. All arbitration proceedings shall be closed to the public and confidential and all records relating thereto shall be permanently sealed, except as necessary to obtain court confirmation of the arbitration award. No disputes may be arbitrated on a class or representative basis. The Parties agree that the arbitrator will have the power to decide any motions brought by any party to the arbitration, including discovery motions, motions for summary judgment and/or adjudication and motions to dismiss and demurrers, prior to any arbitration hearing. The Parties agree that the arbitrator will issue a written decision on the merits. The Parties also agree that the arbitrator will have the power to award any remedies, including attorneys’ fees and costs, available under applicable law. The Parties shall equally split all fees and costs associated with any arbitration including the arbitrator’s fees and costs (except that each side will pay for their own defense, including attorney’s fees and costs, subject to reimbursement as provided for above) as well as any administrative or hearing fees charged by the arbitrator or AAA. Except as expressly provided in this Section, the Parties agree that the arbitrator will administer and conduct any arbitration in a manner consistent with the Rules.

18. Severability.

If a court of law holds any provision of this Agreement to be illegal, invalid, or unenforceable, (a) that provision shall be deemed amended to achieve an economic effect that is as near as possible to that provided by the original provision and (b) the legality, validity, and enforceability of the remaining provisions of this Agreement shall not be affected.

19. Waiver.

If Company waives any term, provision or Promoter’s breach of this Agreement, such waiver shall not be effective unless it is in writing and signed by Company. No waiver by a party of a breach of this Agreement shall constitute a waiver of any other or subsequent breach by Promoter.

20. Modification to Terms.

Company may, in its sole and absolute discretion, change these Terms and Conditions from time to time. All changes to the Terms and Conditions will be effective when posted, and we will provide notification of such changes to you through the Platform or via email. Your continued participation as a Promoter following any changes to the Terms and Conditions will constitute your agreement to be bound by such changes. If you object to any such changes, your only recourse will be to terminate this Agreement.