1. DUTIES AND RESTRICTIONS:
(a) Affiliate shall perform the following services (collectively, the “Services”):
(i) use best efforts to solicit and obtain leads and orders for Eterneva’s services and products on a worldwide basis in the manner and under such terms, conditions and policies as Eterneva shall from time to time establish, including but not limited to promoting and marketing Eterneva’s Services on [his or her or its] website, social media accounts, and other distribution channels;
(ii) fulfill those duties and perform those activities as set forth on Exhibit A;
(iii) comply strictly with all Eterneva policies and procedures relating to the business covered by this Agreement, including the submission of leads; and
(iv) report to a designated representative of Eterneva at least once per month on the status of Affiliate’s Services.
(b) Affiliate will not enter into contracts for sale of any Eterneva services or products, grant any allowances, credits or adjustments, authorize the reperformance of any services or the return of any products, or make any other commitments on behalf of Eterneva without obtaining the prior written consent of Eterneva.
(c) Comply with Eterneva’s rules and procedures regarding the use of Eterneva’s Marks (as defined below).
(d) Nothing in this Agreement shall obligate Eterneva to follow up with any leads or accept or fulfill any orders generated by Affiliate.
2. INDEPENDENT CONTRACTOR STATUS:
Affiliate is an independent contractor and shall not be deemed to have an employment or agency relationship with Eterneva. Affiliate shall not hold himself/herself out as having any other relationship to Eterneva and upon the request of Eterneva, Affiliate shall furnish a written disclaimer as to any other relationship to Eterneva. Affiliate shall be responsible for all expenses of the operation of his business and shall not be considered an employee of Eterneva as respects workers' compensation coverage. Affiliate shall assume full and sole responsibility for insuring or self-insuring work related injuries.
3. CONFIDENTIALITY:
All information of Eterneva, including any business, plans, technology, databases, products, contact or network lists, marketing and promotional materials, strategies, business methods, or processes (collectively, “Confidential Information”), is and shall remain the property of Eterneva. Affiliate agrees that it shall not divulge, use, or transmit (orally, in writing, or in electronic or computerized form) any Confidential Information except (i) in connection with the Services during the term that are conducted pursuant to the provisions of this Agreement or (ii) with Eterneva’s express prior written consent. Affiliate shall take such steps or precautions as are reasonably necessary to safeguard all Confidential Information. “Confidential Information” does not include information that is or becomes generally available to the public or in the industry other than as a result of a disclosure by Affiliate or its representatives. Upon any termination of this Agreement, or upon Eterneva’s request at any time, Affiliate promptly shall deliver to Eterneva, or destroy and certify to the destruction of, any and all Confidential Information then in Affiliate’s possession or control, in any form or format. Nevertheless, Affiliate may, upon advance notice to Eterneva, maintain such copies of Confidential Information as necessary to fulfill its legal or regulatory requirements, and for no other purpose. If Affiliate becomes legally compelled to disclose any Confidential Information or is served with any subpoena, discovery device, or other legal process seeking Confidential Information, Affiliate may disclose such Confidential Information strictly in accordance with its legal obligations; provided, however, that, before such disclosure, Affiliate shall (i) promptly notify Eterneva regarding the required disclosure, so that Eterneva may seek a protective order or other relief regarding the disclosure of such Confidential Information, and (ii) comply with all reasonable requests of Eterneva regarding such disclosure. The obligations of this Section 4 shall survive the expiration or termination of this Agreement for any reason.
4. RESTRICTIVE COVENANTS; EXCLUSIVITY:
(a) Based on the proprietary and confidential nature of Eterneva, vendor, and customer information and other information that Affiliate will access or be disclosed in connection with this Agreement or the performance of the Services, Affiliate acknowledges and agrees that it is reasonable and necessary to enter into the restrictive covenants stated in this Agreement. In consideration of Affiliate’s promises in Section 4 and Section 5, Eterneva promises to provide Affiliate with access to Confidential Information to the extent reasonably necessary for the performance of the Services.
(b) This Agreement is not exclusive for Eterneva, who may designate one or more marketing affiliates, influencers, brand ambassadors, distributors, representatives or other agents to perform the same or similar services in any geographic area. Eterneva reserves the right to sell its services and products directly to customers via Eterneva’s website or other distribution channels.
(c) During and after the term, Affiliate, on behalf of Affiliate or on behalf of or in conjunction with any other person or entity, shall not directly or indirectly, including through any Media, make any statements or other communications (oral or written) that would constitute libel, slander, or disparagement of, or in any way disparage, denigrate, or ridicule, Eterneva or its affiliates, or any of their members, managers, officers, directors, stockholders, employees, representatives, or agents, or Eterneva’s or its affiliates’ products or services, nor shall Affiliate solicit any such statements or communications from others. For purposes of this Agreement, “Media” means any station, publication, show, website, web log (blog), bulletin board, social networking site, chat room, program, or news organization (past, present, or future), whether published through the means of print, radio, television, email, text message, the Internet, or otherwise, or any agent of the same.
(d) During the term, and for one (1) year following the expiration or termination of the term for any reason, Affiliate shall not (and, if applicable, Affiliate’s members, managers, officers, directors, shareholders, partners, representatives, or agents, shall not):
(i) Engage as an owner, member, director, officer, employee, operator, advisor, manager, investor, lender, or developer of any Competitor (as defined below);
(ii) Provide any consulting, brand ambassador, influencer, endorser or similar services, including without limitation those within the scope of the Services, for a Competitor;
(iii) Solicit for the purpose of offering employment to or of hiring (whether as an employee, consultant, agent, independent contractor, or otherwise) or hire any employee or contractor of Eterneva (including any individual whose employment or contractor relationship with Eterneva terminated less than six (6) months from the date of such solicitation); or
(iv) Induce or attempt to induce any customer, supplier, vendor, licensee, licensor, or other business relation of Eterneva to cease doing business with Eterneva.
(e) During the term and for one (1) year following the expiration or termination of the term for any reason, solicit, whether directly or indirectly, any current or prospective customer or client of Eterneva on behalf of [himself, herself or itself] or any other person or entity.
(f) For purposes of this Agreement,
“Competitor” means any person or entity that competes, directly or indirectly, with Eterneva Business. If the final judgment of a court or of an arbitrator of competent jurisdiction declares that any provision of this Article 5 is invalid or unenforceable, the parties agree that, to the extent permitted under applicable law, the court or arbitrator making such determination shall have the power to reduce the scope, duration, or area of the provision, to delete specific words or phrases, or to replace any invalid or unenforceable provision with a provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable provision, and this Agreement shall be enforceable as so modified.
5. COMPANY MARKS:
Affiliate acknowledges that the trade names, trademarks and brand names (“Marks”) connected with the Products or Eterneva together with the goodwill associated therewith are the sole and exclusive property of Eterneva. Affiliate shall conduct business in a manner consistent with the preservation and protection of Eterneva's rights in such Marks and shall not at any time use or assert any rights to them. Any use or display of Eterneva's Marks shall be subject to Eterneva’s approval and shall be in compliance with any Eterneva rules and procedures. All such use or display of Eterneva’s Marks shall inure to the sole and exclusive benefit of Eterneva. These obligations shall survive the termination or expiration of this Agreement and Affiliate acknowledges that any breach of this obligation shall result in immediate and irreparable harm to Eterneva and that Eterneva shall be entitled to equitable relief by way of temporary and permanent injunction and such other relief as a court may deem just and proper, without waiving or limiting any rights to which Eterneva may be entitled pursuant to this Agreement or by operation of law.
6. REPRESENTATIONS AND WARRANTIES:
(a) Affiliate represents and warrants that it is and shall remain at all times during the term of this Agreement in full compliance with all applicable laws and regulations and shall demonstrate the highest standard of ethical conduct in all business matters, act responsibly regarding Eterneva's interest and place such interest above Affiliate’s personal interests. Affiliate further represents and warrants that (i) there are no restrictions or limitations, contractual or otherwise, which prohibit [him, her or it] from performing the Services under this Agreement, (ii) neither this Agreement nor the performance thereof will conflict with or violate any obligation of Affiliate or right of any third party
(b) Eterneva represents and warrants that all Products, on the date of shipment, will be merchantable, of good quality and fit for the purpose intended. THE PROVISIONS OF THE FOREGOING WARRANTIES ARE IN LIEU OF ANY OTHER WARRANTY, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, AND EXCEPT AS SPECIFICALLY SET FORTH ABOVE, ETERNEVA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO ETERNEVA’S BUSINESS, SERVICES, PRODUCTS, MARKS OR ANY PROMOTIONAL OR OTHER MATERIALS SUPPLIED BY ETERNEVA, OR THE PERFORMANCE OR RESULTS OF THE SALE OR USE OF THE PRODUCTS, SERVICES, MARKS OR THE PROMOTIONAL OR OTHER MATERIALS SUPPLIED BY ETERNEVA.
7. TERM:
(a) This Agreement will commence on the Effective Date and shall have an initial term of one year. After the initial term, the term shall automatically renew for additional one year periods, unless either party provides notice of non-renewal at least thirty (30) days prior to the expiration of the current term.
(b) Notwithstanding the foregoing, Eterneva may terminate this Agreement as follows: (i) without cause upon thirty (30) days’ prior written notice; (ii) immediately if Affiliate beaches Articles 4, 5 or 6; (iii) immediately for cause upon written notice to Affiliate in the event that Affiliate makes any representations, whether under this Agreement or to a customer, which is not correct; (iv) for cause in the event Affiliate breaches any term of this Agreement and fails to cure said breach within ten (10) days of oral or written notice by Eterneva; or (v) immediately if Affiliate violates any law or regulation applicable to [his, her or its] business, or attempts to assign or delegate any part of this Agreement, or ceases doing business in the ordinary course, or becomes insolvent, or goes into liquidation, or has a receiver appointed for any of his property or assets, or files or has filed against [him, her or it] a petition in bankruptcy or any other insolvency proceeding, or makes an assignment for the benefit of creditors (in each case, as applicable).
(c) Affiliate may terminate this Agreement as follows: (i) without cause upon thirty (30) days’ prior written notice; (ii) immediately for cause in the event Eterneva breaches any term of this Agreement and fails to cure said breach within ten (10) days of oral or written notice by Affiliate.
(d) In the event of termination of this Agreement, Eterneva shall pay Affiliate any Compensation to which Affiliate is entitled through the effective date of termination. Upon termination, Affiliate shall immediately: (i) cease performing the Services; (ii) return to Eterneva all of Eterneva's property then in Affiliate's possession, including but not limited to technical and promotional materials; and (iii) cease using or displaying any of Eterneva's Marks. Notwithstanding anything contained in this Agreement to the contrary and in addition to all other remedies provided in this Agreement and by operation of law, Eterneva shall have the right to withhold and not pay any outstanding Compensation to Affiliate unless Affiliate has complied fully with the obligations set forth in this Agreement.
(e) During the term, Affiliate shall not, in any capacity, directly or indirectly, on Affiliate’s own behalf or on the behalf of any other person or entity, engage in any of the following conduct, without the prior written consent of Eterneva: (i) any activities or services that detract from or conflict with Affiliate’s fulfillment of the terms of this Agreement; or (ii) any failure to forward business opportunities to Eterneva that Affiliate discovers or identifies within the course and scope of Affiliate’s provision of the Services.
(f) Affiliate acknowledges that notwithstanding anything to the contrary, except for the payment of Compensation due and payable in accordance with the terms of this Agreement, Eterneva shall not be liable to Affiliate by reason of the termination in accordance with this Agreement or expiration of this Agreement for compensation, reimbursement or damages either on account of present or prospective profits for leads, sales or anticipated leads or sales, or on account of expenditures, investments or commitments made in connection therewith, or in connection with the establishment, development or maintenance of the business or good will or on account of any other cause or thing whatsoever.
8. INDEMNITY; LIMITATION OF LIABILITY:
(a) Affiliate shall indemnify and hold harmless Eterneva, including Eterneva’s affiliates and their respective members or shareholders (as applicable), officers, directors, employees, agents and representatives, from and against any and all claims, losses, liabilities, damages, fees, fines, costs and expenses (including reasonable attorneys’ fees, court costs and interest) arising in connection with (i) the failure by Affiliate to comply in any manner with any and all applicable laws, rules or regulations or with the terms of this Agreement, (ii) any misrepresentations made by or on behalf of Affiliate and (iii) any actions by or on behalf of Affiliate in connection with this Agreement.
(b) IN NO EVENT SHALL ETERNEVA HAVE ANY LIABILITY TO AFFILIATE FOR ANY LOST PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OF USE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. ETERNEVA’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT OF COMPENSATION PAID BY ETERNEVA TO AFFILIATE FOR THE QUARTER IMMEDIATELY PRECEDING THE EVENTS WHICH GAVE RISE TO THE CLAIM.
9. ASSIGNMENT.
(a) Eterneva may assign this Agreement to any person or entity controlling, controlled by, or under common control with Eterneva.
(b) This Agreement is being entered into by Eterneva on the basis of careful investigation of Affiliate’s reputation, experience and knowledge. This Agreement and Affiliate’s duties and privileges may not, without the prior written approval of Eterneva, be transferred or alienated, in whole or in part, directly or indirectly, including, without limitation, by assignment, pledge or hypothecation, (if Affiliate is an entity) merger, consolidation, reorganization or similar event, change in the management or control of Affiliate, sale or transfer of securities or otherwise by operation of law, or sale of all or a substantial portion of Affiliate’s business or assets, or otherwise (as applicable). No sub-ambassador, sub-agent, sub-representative or sub-contractor for any may be appointed by Affiliate without Eterneva’s prior written approval.
10. MISCELLANEOUS:
This Agreement and any and all prior agreements, whether verbal or written, previously made between the parties relating to the subject matter and the full understanding of the parties is expressed herein. All Exhibits referred to herein are an integral part of this Agreement and shall be considered legal and binding. No amendment or modification of this Agreement shall be binding upon Eterneva unless in writing and signed by a duly authorized representative of Eterneva. Failure at any time to require the performance of any obligation under this Agreement shall not affect the right of Eterneva to require performance of that obligation. Any waiver of any breach of any provision of this Agreement shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver or modification of the provision itself, or a waiver or modification of any right under this Agreement. Notice will be deemed to have been sufficiently given to the other party if mailed first class, postage prepaid, addressed as indicated herein or to such other addresses as designated by either party to the other by written notice. In the event of any dispute involving the terms of this Agreement, the prevailing party shall be entitled to collect reasonable costs, fees and expenses incurred by the prevailing party in connection with such dispute from the other party to such dispute, including without limitation, reasonable attorneys' fees and court costs. This Agreement shall be governed and construed in accordance with the laws of the State of Texas. Venue for any action or proceeding arising in connection with this Agreement shall be exclusively within the courts of Travis County, Texas.
11. ADDITIONAL DUTIES AND ACTIVITIES
-Affiliate agrees to include information about Eterneva (e.g., logo, brand/product information and link to Eterneva.com) on [his, her, or its] personal and brand websites and domains, as well as social media accounts associated with [his, her, or its] personal websites and domains and other public statements made on behalf of Eterneva in furtherance of this Agreement.
-Affiliate agrees to distribute Eterneva information in furtherance of this Agreement as may be reasonably requested by Eterneva.
-Affiliate will act in a professional and ethical manner with regard to the Services.
-Affiliate shall disclose [his, her or its] relationship with Eterneva when performing under this -Agreement, including when performing marketing, promotional or other informational Services under this Agreement.
-Affiliate shall not make any statements which are false or misleading concerning Eterneva or its services and products.
-Affiliate shall comply with all applicable federal, state and local laws, rules and regulations with respect to the Services.
