MASTER AMBASSADOR SERVICES AGREEMENT
This Master Ambassador Services Agreement (“Agreement”) is made and entered into effect upon electronic sign up and release of coupon code (“Effective Date”), by and between Preferred-CBD, LLC, a California limited liability company (“Company”), whose address is 9655 Granite Ridge Drive, Suite 200, San Diego, CA 92123 and Ambassador (“Ambassador”), whose address may be provided upon request. The Company and Ambassador are sometimes referred to herein individually as a “Party” and collectively as the “Parties.”
A. The Company is engaged in the business of manufacturing and distributing hemp and hemp-related products.
B. The Company desires to retain Ambassador as a Company “Brand Ambassador” for the purpose of providing certain marketing, public relations and administrative services on behalf of the Company, and Ambassador wishes to accept such engagement, on the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the above Recitals and the terms and conditions contained herein, and certain other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. General Responsibilities of Ambassador. During the term of this Agreement, Ambassador shall provide on behalf of the Company certain marketing, promotional and administrative services related to the Company’s business, as requested by the Company from time to time during the term hereof (collectively, “Services”) to be used indefinitely across multiple marketing platforms including but not limited to print, web, social, display, and email. All Services provided hereunder shall be subject to commercially reasonable performance standards as established by the Company from time to time.
2. Specific Services. The Services to be provided by Ambassador shall involve marketing and promotional activities, while at all times ensuring compliance with applicable Food and Drug Administration (“FDA”), United States Department of Agriculture (“USDA”) and Drug Enforcement Administration (“DEA”) requirements and guidelines, including but not limited to the following: (a) personal interaction and communication with the Company’s customers, suppliers and the general public regarding the nature of the products and services provided by the Company, as directed by the Company, with the objective of maximizing the Company’s brand awareness; (b) work with the Company’s Content Creator to increase the Company’s gross sales and revenues; (c) post not less than two (2) social media posts per month, designed to advocate CBD products as therapy and wellness products and otherwise market the Company’s products and services and increase public awareness of the Company’s competitive advantage and unique sales and marketing methods; and (d) participate in and attend not less than six (6) personal appearances or photography sessions per year at venues designated by the Company, including virtual training designed to assist Ambassador in recognizing opportunities to utilize content and social media marketing to enhance the Company’s brand, brand recognition and product demand.
3. General Responsibilities of the Company. The Parties acknowledge and agree that: (a) the Company will provide to Ambassador messaging that is acceptable for Ambassador to use during his or her marketing efforts, that Ambassador’s strict compliance with these messaging points or talking points will be mandatory, and failure to strictly follow such messaging shall constitute a material breach of this Agreement; (b) the Company will not provide office space or any staffing or support personnel to assist Ambassador in the performance of the Services, other than such support personnel as may be designated and assigned by the Company in its sole discretion; and (c) unless otherwise agreed in writing with respect to expenses to be incurred by Ambassador which the Company has agreed in advance to reimburse, Ambassador shall utilize his or her own supplies, transportation, telephones, computers, computer software and other equipment and bear his or her own costs and expenses, including any charges paid to third-parties, incurred in connection with Ambassador’s performance of the Services, without reimbursement from the Company. In addition, the Company will provide access to continuing education classes or seminars for Ambassador dealing with the CBD Industry not less than two (2) times per year, at the Company’s expense. The Company’s Content Creator will be available to Ambassador for consultation at reasonable and mutually-convenient times.
4. Compensation and Financial Terms. As consideration for Ambassador’s providing the Services to the Company hereunder, Ambassador will be compensated by the Company in accordance with the Compensation Schedule attached hereto as Exhibit “A” and made a part hereof. The compensation payable to Ambassador hereunder has been determined by the Parties through good faith and arms-length negotiations.
5. Regulatory Matters. The Parties agree to cooperate with one another in good faith in the fulfillment of their respective obligations under this Agreement, and to comply with the requirements of law and with all ordinances, statutes, regulations, directives, orders, or other lawful enactments or pronouncements of the FDA, USDA, DEA and any other federal, state, municipal, local or other lawful authority or social media platform, or policy of insurance applicable to the Company, its business or the cannabis industry in general.
6. Proprietary Rights. Ambassador recognizes and acknowledges that all formulas, customer lists, processes, product information, financial and marketing information, office personnel, and other records and information relating to the Company’s business belong to and shall remain the property of the Company, and constitute proprietary information and trade secrets that are valuable, special, and unique assets of the Company’s business (collectively, the “Confidential Information”). Ambassador shall not, during or after the term of this Agreement, disclose any Confidential Information to any other firm, person, company, association, or other entity for any reason or purpose whatsoever, without the written consent of the Company, which consent may be withheld in the Company’s sole and absolute discretion. Any Confidential Information (including all copies thereof) that comes into Ambassador’s possession or control: (a) is the property of the Company; (b) will not be used by Ambassador in any way adverse to the Company or for the benefit of Ambassador; and (c) at the termination of this Agreement, will be promptly returned and/or restored to the Company, and Ambassador shall discontinue use of such materials.
7. Enforcement. Each Party acknowledges that any violation of the restrictive covenants set forth in Section 6 will cause irreparable damage which a monetary award would be inadequate to remedy, and that a court or arbitrator of competent jurisdiction may, in addition to monetary awards, enjoin any breach of and enforce such restrictive covenants by temporary restraining order, and preliminary and permanent injunctive relief. If a court or arbitrator of competent jurisdiction determines that any of the restrictive covenants set forth in Section 6 are unreasonable in nature or duration, then each Party agrees that such court or arbitrator shall reform such restrictive covenant so that such restrictive covenant is enforceable to the maximum extent permitted by law for a restrictive covenant of that nature, and such court shall enforce the restrictive covenant to that extent.
8. Tax Matters. Each Party shall be solely responsible for the filing of its own tax returns as required by federal, state and local law, as well as the payment of all taxes required by applicable federal, state and local taxing authorities, including, but not limited to, income taxes and self-employment taxes. Ambassador acknowledges and understands that the compensation he/she receives pursuant to this Agreement (including cash consideration, commissions, and free products) may result in significant tax obligations based upon the fair value of such items. Ambassador agrees to promptly report and pay all such tax liabilities and to indemnify, defend and hold the Company free and harmless for any costs, liabilities, damages, penalties or other claims incurred by or threatened against the Company as a result of Ambassador’s failure to file such returns or pay such taxes.
9. Term and Termination.
(a) Term. Subject to Section 9(b) below, the term of this Agreement shall commence on the Effective Date and shall continue for a period of one (1) year. Unless either Party elects not to renew this Agreement, this Agreement shall be automatically renewed for successive periods of one (1) year each, subject to the right of either Party to terminate this Agreement for any reason or for no reason including, with respect to the Company, any financial hardship imposed upon the Company due to economic or competitive conditions in the industry, upon thirty (30) days’ prior written notice.
(b) Automatic Termination. In addition, this Agreement and the Services provided hereunder shall terminate automatically, without the necessity of written notice to either Party, upon the occurrence of any of the following events: (i) the death or permanent disability of Ambassador; (ii) the dissolution of Company; or (iii) the material breach or default by either Party of any of the terms or obligations set forth herein, including conduct reflecting negatively upon the Company, false, misleading or unsupportable statements regarding the Company or the curative effects of its products.
(c) Obligations After Termination. Except as otherwise provided herein or in any amendment hereto, following the effective date of termination of this Agreement, Company and Ambassador shall cooperate to assure the appropriate transfer and return of any Confidential Information.
(d) Status of Parties. In the performance of his or her Services, work, duties and obligations under this Agreement, Ambassador is, and shall at all times be, acting and performing as an independent contractor with respect to the Company. The Company shall neither have nor exercise any control or direction over the methods by which Ambassador shall perform his or her Services. The Company and Ambassador acknowledge and agree that: (a) Ambassador, as an independent contractor carrying on an independent business for himself/herself, is free from the control and direction of the Company or any of its members or managers in connection with the performance of the Services, both as such term is defined in Section 1 of this Agreement and in fact; (b) Ambassador’s independently established trade, occupation and business involves performing contract work of the same nature as the work that Ambassador performs on behalf of the Company on behalf of other businesses and companies unrelated to the Company; (c) Ambassador also contracts to perform work on behalf of unrelated entities that is outside the usual course of the Company’s business and unrelated to the Services; (d) Ambassador does not require and has not received training in his/her business from the Company or any affiliate of the Company and Ambassador already possesses and supplies the necessary supplies, computer equipment and other materials, as applicable, required to perform the Services; and (e) Ambassador shall not be under the direct supervision of the Company while in the process of performing the Services. Ambassador and the Company shall not be in the relationship of employer-employee, partners or joint venturers, and neither Party shall have the authority to obligate or bind the other to any contract, obligation or undertaking whatsoever. Neither Party to this Agreement shall have any claim against the other for vacation pay, sick leave, retirement benefits, Social Security or unemployment benefits of any kind. Ambassador hereby agrees to indemnify and hold the Company free and harmless from and against any taxes (including payroll taxes), interest or penalties imposed upon the Company in the event Ambassador’s tax status as set forth in this Section is determined by any taxing authority to be other than that of an independent contractor.
(e) No Rights in Third Parties. This Agreement is not intended to nor shall it be construed to create any rights in any third parties.
NonAssignment. Except as specifically provided herein, neither Party may assign this Agreement except with the prior written approval of the other Party, which approval may be withheld in such Party’s sole and absolute discretion; provided, however, the Company shall have the unrestricted right to assign this Agreement without the consent of Ambassador in the event of an asset or membership interest sale, merger or similar strategic transaction involving the Company.
10. General Provisions.
(a) Notice. Any notice sent shall be sufficient if personally delivered or sent by United States mail, postage prepaid, to any Party to this Agreement at the address shown in the introductory paragraph of this Agreement, or to such other address as such Party shall give in writing.
(b) Further Acts. Each Party shall execute such documents and instruments or accomplish all such acts as reasonably may be necessary or desirable to give effect to the intent of the Parties as set forth in this Agreement.
(c) Binding on Transferees. This Agreement shall be binding upon and inure to the benefit of each Party’s permitted successors or assigns.
(d) Captions. The captions in this Agreement are solely for the convenience of the Parties and shall not be construed as being part of this Agreement.
(e) Governing Law; Attorneys’ Fees. All questions with respect to the construction of this Agreement and the rights and liabilities of the Parties shall be governed by the laws of the State of California. Any legal proceedings which may be required to enforce, interpret or construe this Agreement shall be instituted in San Diego County, California. In the event of any legal proceeding, including a mediation or arbitration proceeding, between the Parties in connection with this Agreement, the prevailing Party in such proceeding shall be entitled to recover its reasonable attorneys’ fees and court costs.
(f) Time of the Essence. With regard to the performance by the Parties of their obligations under this Agreement, time is expressly made of the essence.
(g) Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. A signature page of this Agreement executed and delivered by facsimile, PDF transmission, any electronic signature complying with the U.S. Federal ESIGN Act of 2000, as amended, or similar reproduction of such signed writing using electronic mail shall be as effective as an original executed signature page.
(h) No Waiver. No waiver of any provision herein shall constitute a general waiver for future purposes.
(i) Severability. If any provision or provisions of this Agreement are determined to be invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the validity or enforceability of any other provision of the Agreement.
(j) Interpretation. This Agreement has been negotiated at arm’s length and between parties sophisticated and knowledgeable in the matters dealt with in this Agreement. Accordingly, any rule of law or legal decision that would require interpretation of any ambiguities in this Agreement against the Party responsible for drafting this Agreement is not applicable and is waived. The provisions of this Agreement shall be interpreted in a reasonable manner to carry out the intent of the Parties and this Agreement.
(k) Entire Agreement. This Agreement (including the Exhibit attached hereto) memorializes and constitutes the final expression and the complete and exclusive statement of agreement and understanding between the Parties with respect to the subject matter set forth herein. This Agreement supersedes and replaces all prior negotiations, proposed agreements and agreements, communications and e-mails, whether written or unwritten. Each of the Parties to this Agreement acknowledges that he, she or it has not executed this Agreement in reliance upon any promise, representation, statement, or warranty whatsoever, express or implied, which is not expressly contained in this Agreement nor in reliance upon any belief as to any fact not expressly recited herein.
IN WITNESS WHEREOF, the Parties have executed this Agreement upon electronic sign up via Company’s third party application, with Effective Date being date of electronic submittal of information and formal signature shall not be required unless requested by Preferred-CBD, LLC. or Ambassador.
In consideration for the Services provided by Ambassador under the attached Agreement, the Company will compensate Ambassador during the term of this Agreement as follows:
Free quantities of the Company’s products in reasonable and mutually agreed-upon amounts and at reasonable and mutually agreed-upon intervals (as determined by the Company), to be provided to Ambassador and his or her spouse upon request. All related shipping costs, if any, will be paid by the Company.
An eighteen percent (18%) discount on purchases made from the Company’s Website for designated friends and family members of Ambassador whose identities have been previously disclosed to and approved by the Company and who utilize the Ambassadors Discount Code provided upon electronic sign up via Company’s third party application.
Compensation in the form of a quarterly payment (“Quarterly Commission”) computed based upon the Company’s Gross Sales from the Company’s B2C Website using the ADC, reduced by any product returns, refunds, rebates, credits, chargebacks and similar adjustments under the same ADC during the previous calendar quarter (“Calculation Quarter”).