This Affiliate Agreement (this “Agreement”) is entered into as of __________, by and between Eusoh, Inc., a Delaware corporation (the “Company”), and __________ (“Affiliate”).
The parties agree as follows:
Services. Affiliate agrees to act as a independent contractor for all purposes
(collectively, the “Services”) and in no event will any person employed by you be held or
construed to be employees of the Company. Specifically, the Company is not a member of any
partnership, joint venture or franchise arrangement with you.
Compensation. The Company shall pay Affiliate at the rate of $40 per every
referred subscriber that fully registers as a paying member (the “Member”) to the Company. The
referral program will endure as along as the Affiliate remains as an active Affiliate in the
Company Ambassador Program.
Expenses. Under this agreement there are no Expenses for which the Company
will reimburse the Affiliate for.
Term and Termination. The term of this Agreement shall continue from the
date hereof and may be renewed by mutual agreement of the parties; provided, however, that this
Agreement may be terminated by either party immediately without cause by either the Affiliate
or the Company by providing notice to the other party. Upon termination, Affiliate will stop
using and return all Company materials.
Independent Contractor. Affiliate’s relationship with the Company will be that
of an independent contractor and not that of an employee. Affiliate will not be eligible for any
employee benefits, nor will the Company make deductions from payments made to Affiliate for
employment or income taxes, all of which will be Affiliate’s responsibility. Affiliate agrees to
indemnify and hold the Company harmless from any liability for, or assessment of, any such
taxes imposed on the Company by relevant taxing authorities. Affiliate will have no authority to
enter into contracts that bind the Company or create obligations on the part of the Company
without the prior written authorization of the Company.
Nondisclosure of Confidential Information.
Agreement Not to Disclose. Affiliate agrees not to use any Confidential Information (as defined below) disclosed to Affiliate by the Company for Affiliate’s own use or for any purpose other than to carry out discussions concerning, and the undertaking of, the
Services. Affiliate shall not disclose or permit disclosure of any Confidential Information of the
Company to third parties. Affiliate agrees to take all reasonable measures to protect the secrecy
of and avoid disclosure or use of Confidential Information of the Company in order to prevent it
from falling into the public domain or the possession of persons other than those persons
authorized under this Agreement to have any such information. Affiliate further agrees to notify
the Company in writing of any actual or suspected misuse, misappropriation or unauthorized
disclosure of the Company’s Confidential Information which may come to Affiliate’s attention.
Definition of Confidential Information. “Confidential Information” means any
information, technical data or know-how (whether disclosed before or after the date of this
Agreement), including, but not limited to, information relating to business and product or service
plans, financial projections, customer lists, business forecasts, sales and merchandising, human
resources, patents, patent applications, computer object or source code, research, inventions,
processes, designs, drawings, engineering, marketing or finance to be confidential or proprietary
or which information would, under the circumstances, appear to a reasonable person to be
confidential or proprietary. Confidential Information does not include information, technical
data or know-how which: (i) is in the possession of Affiliate at the time of disclosure, as shown
by Affiliate’s files and records immediately prior to the time of disclosure; or (ii) becomes part
of the public knowledge or literature, not as a direct or indirect result of any improper inaction or
action of Affiliate.
Exceptions. Notwithstanding the above, Affiliate shall not have liability to the
Company or any of its subsidiaries with regard to any Confidential Information of the Company
which Affiliate can prove:
- is disclosed with the prior written approval of the Company; or
is disclosed pursuant to the order or requirement of a court, administrative agency,
or other governmental body; provided, however, that Affiliate shall provide prompt notice of
such court order or requirement to the Company to enable the Company or its appropriate
subsidiary to seek a protective order or otherwise prevent or restrict such disclosure.
U.S. Defend Trade Secrets Act. Notwithstanding the foregoing, the U.S. Defend
Trade Secrets Act of 2016 (“DTSA”) provides that an individual shall not be held criminally or
civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is
made (i) in confidence to a federal, state, or local government official, either directly or
indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a
suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other
proceeding, if such filing is made under seal. In addition, DTSA provides that an individual who
files a lawsuit for retaliation by an employer for reporting a suspected violation of law may
disclose the trade secret to the attorney of the individual and use the trade secret information in
the court proceeding, if the individual (A) files any document containing the trade secret under
seal; and (B) does not disclose the trade secret, except pursuant to court order.
No Duplication; Return of Materials. Affiliate agrees, except as otherwise
expressly authorized by the Company, not to make any copies or duplicates of any of the
Company’s Confidential Information. Any materials or documents that have been furnished by
the Company to Affiliate in connection with the Services shall be promptly returned by Affiliate
to the Company, accompanied by all copies of such documentation, within ten days after the
earlier of (a) the date on which the Services have been concluded or (b) the date of written
request of the Company.
No Rights Granted. Nothing in this Agreement shall be construed as granting
any rights under any patent, copyright or other intellectual property right of the Company, nor
shall this Agreement grant Affiliate any rights in or to the Company’s Confidential Information,
except the limited right to use the Confidential Information in connection with the Services.
Assignment of Inventions.To the extent that, in connection with performing the
Services, Affiliate jointly or solely conceives, develops, or reduces to practice any inventions,
original works of authorship, developments, concepts, know-how, improvements or trade secrets,
whether or not patentable or registrable under copyright or similar laws, Affiliate hereby assigns
all rights, titles and interest to such inventions to the Company.
Duty to Assist. As requested by the Company, Affiliate shall take all steps
reasonably necessary to assist the Company in obtaining and enforcing in its own name any
patent, copyright or other protection which the Company elects to obtain or enforce for its
inventions, original works of authorship, developments, concepts, know-how, improvements and
trade secrets. Affiliate’s obligation to assist the Company in obtaining and enforcing patents,
copyrights and other protections shall continue beyond the termination of Affiliate’s relationship
with the Company, but the Company shall compensate Affiliate at a reasonable rate after the
termination of such relationship for time actually spent at the Company’s request providing such
No Conflicts. Affiliate represents that Affiliate’s compliance with the terms of
this Agreement and provision of Services hereunder will not violate any duty which Affiliate
may have to any other person or entity (such as a present or former employer), including
obligations concerning providing services to others, confidentiality of proprietary information
and assignment of inventions, ideas, patents or copyrights, and Affiliate agrees that Affiliate will
not do anything in the performance of Services hereunder that would violate any such duty. In
addition, Affiliate agrees that, during the term of this Agreement, prior to performing any
services for or otherwise participating in a company developing or commercializing new
software, services, methods, devices, or other technology that may be competitive with the
Company, Affiliate shall first notify the Company in writing. It is understood that in such event,
the Company will review whether Affiliate’s activities are consistent with Affiliate continuing to
provide Services to the Company.
Indemnification. Affiliate agrees to indemnify and hold the Company its
directors, officers, shareholders, successor and predecessor companies, attorneys, agents and
employees harmless from any claim, demand, or damage, including reasonable attorneys' fees
and costs, asserted by any third party due to or arising out of the your actions (including but not
limited to advertising, website content or how you otherwise direct potential customers to our
Limitations of Damages. The Company will not be liable to the Affiliate for any
exemplary, punitive, special or consequential damages, including lost revenues, lost profits or
lost prospective economic advantage arising from any act or omission in performance or failure
to perform under this Agreement, even if the Company is at fault and/or knew or should have
known of the possibility thereof, and you hereby release and waive any claims against the
Company regarding such damages.
Media. No press releases mentioning the Affiliates participation in the Services
may be made without the prior written consent of the Company.
Conduct. The Affiliate agrees to conduct him- or herself with due regard to public
conventions and morals and agree that the Affiliate will not do or commit any act or thing that
will tend to degrade or bring it into public hatred, contempt, scorn or ridicule or that will tend to
shock, insult or offend the community or ridicule public morals or decency. Further, the Affiliate
will not market the Company using illegal, unethical, or misleading methods, or through
Modification to Terms.The Company reserves the right to change these terms at
any time and to notify you by updating and posting these terms on its Site. The Company is not
bound by any other modifications to these terms and conditions unless signed in writing by an
Assignment. This Agreement cannot be assigned.
Waivers. No failure or delay, on the part of the Company, in exercising any right
or power under these Terms will operate as a waiver of such right or power.
Severability. If any term, covenant, condition or provision of this Agreement is
held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties'
intent that such provision be reduced in scope by the court only to the extent deemed necessary
by that court to render the provision reasonable and enforceable and the remainder of the
provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
Miscellaneous. This Agreement, including any exhibits hereto, constitutes the
sole agreement of the parties and supersedes all oral negotiations and prior writings with respect
to the subject matter hereof. Any notice required or permitted by this Agreement shall be in
writing and shall be deemed sufficient upon delivery, when delivered personally or by overnight
courier or sent by e-mail or fax (with customary confirmation of receipt), or 48 hours after being
deposited in the U.S. mail as certified or registered mail (airmail if sent internationally) with
postage prepaid, addressed to the party to be notified at such party’s address or fax number as set
forth on the signature page herein, or as subsequently modified by written notice. The validity,
interpretation, construction and performance of this Agreement shall be governed by the laws of
the state of California, without giving effect to the principles of conflict of laws. This
Agreement may be executed in counterparts, each of which shall be deemed an original, but all
of which together will constitute one and the same instrument.