iSportz Service Agreement
This Affiliate Agreement (“Agreement”) is entered into and made effective as of date of signature (“Effective Date”) by and between iSportz, Inc. (“Company”), a Delaware corporation, having a principal place of business at 956 International Parkway, Suite 1590, Lake Mary, FL 32746 and The Alliance Fastpitch, LLC (“Affiliate”) a Delaware corporation, having a principal place of business at 1590 Sinclair St., Anaheim, CA 92806. Each of Company and Affiliate may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.”
WHEREAS Company is engaged in the development and sale of sports technology products (“Products”); and
WHEREAS Company desires to have the services of Affiliate; and
WHEREAS Affiliate is willing to be affiliated with Company as an independent contractor.
NOW THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth in this Agreement, and for other good, valuable, and legal consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows:
“Affiliate Marks” means the logos (including, without limitation, the Affiliate logos), trademarks, and other indicia of origin owned by Affiliate that it provides to Company for use in accordance with and pursuant to this
“Company Marks” means the logos (including, without limitation, the iSportz logos), trademarks, and other indicia of origin owned by Company that it provides to Affiliate for use in accordance with and pursuant to this
Company shall engage Affiliate as an independent contractor. Affiliate will introduce and facilitate sales opportunities for Company Products. Once a sales opportunity is identified by Affiliate and introduced to Company, it will be qualified by Company to become a Qualified Opportunity. Affiliate’s responsibility from that point forward will be limited to facilitating sales efforts and ongoing account management of any Qualified Opportunity that has been converted into a customer. Affiliate will not be responsible for any implementation or product support. Affiliate accepts and agrees to such engagement and agrees to be subject to the production expectations, advice and direction of Company and Company’s personnel.
BEST EFFORTS OF AFFILIATE. Affiliate agrees to perform faithfully, industriously, and to the best of Affiliate’s ability, experience, and talents, all the services that may be commercially reasonably required by the express and implicit terms of this Agreement, to the reasonable satisfaction of Company. Such services shall be provided at such place(s) as the needs, business or opportunities of Company may require from time to time
INCENTIVES. Incentives shall be paid on all revenue received by Company from Products being used by a Qualified Opportunity who has been converted into a customer of Company’s Product(s). Incentive amounts payable shall be in accordance with the following table:
|Qualified Opportunities||Total Annual Revenue from Qualified Opportunities||Incentive|
PAYMENT TERMS: Company will send Affiliate a Statement at the end of every calendar quarter detailing the Incentive payments due to Payment will be made within 30 days of the end of the quarter.
Affiliate is responsible for paying their own taxes on the compensation
Company may deduct offsets or charge-backs relating to Incentive paid for past periods from future Incentive and provide the necessary
Any dispute or claim with respect to the entitlement and/or amount of Incentive must be made in writing to Company within 60 days from the end of the Quarter for which Incentive is Failure to timely raise in writing any claim or dispute with respect to entitlement or amount will constitute total waiver by Affiliate of any such Incentive.
ACCOUNTING: Company shall maintain records in enough detail for purposes of determining the amount of the Incentive Company shall provide to Affiliate a quarterly statement that sets forth the Incentive and the way the payments were calculated.
EXCLUSIONS: Incentives will not be paid for revenue received from customers who are not a Qualified Opportunity from
RIGHT TO INSPECT. Affiliate or Affiliate’s agent shall have the right to inspect Company’s records for the limited purpose of verifying the calculation of the Incentive payments, subject to such restrictions as Company may reasonably impose to protect the confidentiality of the records. Such inspections shall be made during reasonable business hours as may be set by Company.
RECOMMENDATIONS FOR IMPROVING OPERATIONS. Affiliate will be encouraged to provide Company with any information, suggestions and recommendations regarding Company’s business of which Affiliate has knowledge, that will be of benefit to Company.
MUTUAL CONFIDENTIALITY. Each Party recognizes that it has and will have proprietary information regarding the inventions, product designs, trade secrets, copyrights, costs, discounts, business affairs, patents and other vital information items (collectively, “Information”), which are valuable, special and unique assets of the other Party. Each Party agrees that it will not at any time or in any manner, either directly or indirectly, divulge, disclose or communicate any information to any third party without the prior written consent of the other Party. Each Party will protect the Information and treat it as strictly confidential. A violation by either Party of this paragraph shall be a material violation of this Agreement and will justify legal and/or equitable
MUTUAL REPRESENTATIONS AND WARRANTIES. Each Party represents and warrants to the other Party that: (a) it has the full right and authority to enter into this Agreement, perform its obligations under this Agreement, and grant all of the rights granted by it under this Agreement;
this Agreement has been duly executed and delivered on its behalf and is a valid and binding obligation enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or similar laws in effect which affect the enforcement of creditors’ rights generally and by equitable limitations on
the availability of specific remedies; and (c) in the performance of this Agreement, it will comply with applicable state, federal, and local laws and regulations.
MUTUAL INTELLECTUAL PROPERTY OF MARKS. Each Party hereby grants each other a royalty-free, non-exclusive, transferrable, sublicensable (including via multiple tiers of sublicensing) right and license to use, copy, modify (with the prior written consent of the other Party), distribute, display and perform the respective Affiliate and Company Marks as to fulfill its obligations pursuant to this Agreement and to promote each party’s sponsorship of other party during the term of the
MUTUAL QUALITY CONTROL OBLIGATIONS. Each Party (Affiliate and Company) shall cooperate with the other party to assure that the quality of its use of the Marks and the quality of its goods and services in connection with which the Marks are consistent with other uses and To that end, each party shall make reasonable efforts to assure that the quality of other party’s Marks and the level of quality of its goods and services provided in connection with the Marks appropriately promotes and does not detract from the goodwill associated with Affiliate and Company Marks
CONFIDENTIALITY AFTER TERMINATION OF The confidentiality provisions of this Agreement shall remain in full force and effect for a period of two (2) years after the termination of Affiliate’s services pursuant to this Affiliate Agreement.
AFFILIATE’S INABILITY TO CONTRACT FOR COMPANY. Affiliate shall not have the right to enter into any contracts or commitments for or on behalf of Company without first obtaining the express written consent of
TERM/TERMINATION. Affiliate’s affiliation under this Agreement shall be for an unspecified term on an evergreen basis.
This Agreement may be terminated by mutual agreement.
Either Party may terminate this Agreement in the event of a material breach of any term or condition of this Agreement by the other party and a failure by such other Party to timely cure the breach by giving notice as hereinafter In the event of a breach, the non- breaching Party shall provide the breaching Party with written notice of the breach specifying in reasonable detail the nature of the breach. If the breaching Party does not cure the breach within thirty (30) days after receipt of the written notice, the non-breaching Party may immediately terminate this Agreement upon provision of written notice to the breaching party.
Notwithstanding any other provision of this Agreement, either Party may immediately terminate this Agreement by providing written notice of termination to the other Party if (a) the other party voluntarily files a petition in bankruptcy, (b) an involuntary bankruptcy petition is filed against the other Party that is not stayed or dismissed within 120 days, or
the other Party has a receiver appointed for all or substantially all of its business or
Upon termination pursuant to Section 16.2 or 16.3, any Incentive due for Qualified Opportunities in process as of the effective date of such changes will be paid using the method in effect when termination Upon termination pursuant to Section 16.1, any Incentive for Qualified Opportunities in process or occurring during the 12 months immediately following the effective date of termination will be paid by Company to Affiliate using the method in effect when termination occurred.
RETURN OF Upon termination of this Agreement, Affiliate shall promptly deliver to Company, all property which is Company’s property or related to Company’s business (including but not limited to records, notes, data, memoranda, models, and equipment) that is in Affiliate’s possession or under Affiliate’s control. Company will notify Affiliate if item/s are to be returned.
NOTICES: All notices, requests, or other communications required to be given under this Agreement or which the parties may desire to give under this Agreement shall be in writing and
(a) hand delivered personally, (b) sent by e-mail transmission if the transmitting party receives confirmation of successful transmission or (c) addressed and sent by certified or registered mail, postage prepaid and return receipt requested to the parties as follows:
iSportz, Inc. The Alliance Fastpitch
956 International Pkwy, Ste. 1590 1590 Sinclair Street
Lake Mary, FL 32746 Anaheim, CA 92806
Email: email@example.com Email: firstname.lastname@example.org
ENTIRE AGREEMENT. This Agreement contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the
This Agreement may be modified or amended if the amendment is made in writing and is signed by both parties.
If any provision(s) of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provision(s) shall continue to be valid and enforceable. If a court finds that any provision(s) of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid or enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.
Each Party shall indemnify, defend, and hold the other Party and such other Party’s officers, directors, employees, agents, successors, and assigns harmless from and against any and all liabilities, injury, loss, causes of action, damage, and expenses, including reasonable attorneys’ and other professionals’ fees, for any third party claim that arises out of or relates to: (a) the infringement of a third party’s intellectual property right in connection with such Party’s use of the other Party’s Marks in accordance with this Agreement; (b) the material breach by such Party of any representation, warranty, covenant, or other obligation under this Agreement; or (c) the negligence or willful misconduct of such Party, its employees or agents.
WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision(s) of this Agreement shall not be construed as a waiver or limitation of that party’s right to subsequently enforce and compel strict compliance with every provision of this Agreement.
AFFILIATE PROGRAM. Company reserves the right to change any aspect of the Affiliate Program upon 60 days’ notice, on the express condition that such change is equally applied to all affiliates in the Affiliate Program or any similar program operated by Company. Qualified Opportunities in process as of the effective date of such changes will be paid using the method in effect when the changes were
GOVERNING LAW. In the event of any dispute under this Agreement, the laws of the State of Delaware shall govern the validity, performance, enforcement, interpretation and any other aspect of this Agreement, without regard to principles of conflicts of laws
IN WITNESS WHEREOF, the persons signing this Agreement on behalf of the Parties hereto warrant, covenant and represent they are duly authorized to execute this Agreement on behalf of the parties for whom they are signing. The Parties, by their authorized representatives, have executed this Agreement as of the Effective Date.
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