Marketing Affiliate Agreement

THIS MARKETING AFFILIATE AGREEMENT (“Agreement”) is made and entered into as of the date identified below (the “Effective Date”), by and between the affiliate partner identified below ("Affiliate") and LotusFlare, Inc. located at 2880 Lakeside Drive, Suite 331, Santa Clara, CA 95054 (“Nomad”).

SECTION 1 - MARKETING AND RELATED SERVICES

Nomad will provide Affiliate with the marketing material for the Affiliate to advertise. Nomad will describe the process and procedures for the Affiliate on how to proceed with the marketing of Nomad’s Services. Nomad will provide preferred branding specifications, logos, content, and its Nomad Link for tracking purposes (if applicable) with full content to the Affiliate. 

SECTION 2 - COMMISSION AND PAYMENT

Unless otherwise agreed between Nomad and Affiliate, for each product sold by Nomad, which could be linked to the marketing efforts of the Affiliate by way of the tracking mentioned below, Nomad shall pay Affiliate a marketing fee of 10% per product sold i.e. net received excluding taxes. Products sold through the affiliate will be tracked using a 3rd party affiliate tracking service (Refersion).

Provided that this Agreement has not been terminated pursuant to Section 8 hereof, Nomad shall pay the marketing fee due to the Affiliate monthly with payment due no later than thirty (30) days after the end of the month in which the sale was made.  

SECTION 3 - CONTENT
Nomad shall deliver the Content at least five (5) business days before the scheduled start date.  

Each party shall be fully responsible and liable for the content contained on its website or any other platform.  Both parties agree that any materials appearing with, connected to, or in conjunction with the its link or their respective websites or any other platforms shall not contain any content that (i) promotes the use of alcohol, tobacco, or illegal substances; (ii) contains any nudity, sex, pornography, or adult-oriented content; (iii) promotes any illegal activity including, but not limited to, mail fraud and pyramid schemes; (iv) contains advice or solicitations that are not permitted by law; or (v) is libelous, defamatory, contrary to public policy, or otherwise unlawful.


SECTION 4 – LICENSE AND PROPRIETARY RIGHTS

Nomad grants the Affiliate a limited, non-transferable, non-exclusive license to copy, use, store, set up, publicly display, and transmit its content and any of its tradenames, trademarks, and service marks to the extent linked with the content solely for the purposes set forth in this Agreement and only during the term of this Agreement. 

Affiliate acknowledges that the contents of the Nomad’s materials, advertisements, and websites including, without limitation, all trade names, trademarks, service marks, content, text, images, software, functionality, page and other design and layout, media, and other materials therein, are proprietary to or licensed by the other party; protected under copyright, trademark, and other intellectual property laws; and, except as specifically set forth in this Agreement, may not be reproduced without the prior written consent of Nomad, which consent shall be at its sole discretion.

SECTION 5 - WARRANTIES
Each party warrants to the other that it has the right and authority to enter into and perform its obligations under this Agreement.  Each party further warrants to the other that the materials and website that are the subject of or will be used in the performance of this Agreement (i) do not and shall not constitute or be the subject of a notice or claim of any false designation of origin, false advertising or unfair competition under the law of any country; (ii) do not and shall not contain or be alleged to contain any content, work, name, mark, designation, materials, or link that actually or potentially violates any applicable law or regulation or infringes any proprietary, intellectual property, contract, or other right of any person or misappropriate a person's trade secret, name, likeness or identity; and (iii) do not and shall not contain viruses, worms, malicious code, trap doors, back doors, timers, clocks, counters, FTP servers, or other limiting routines, instructions or designs, and no web beacons, web bugs, spy ware, or other similar hidden or transparent code, script, or routine designed to gather, track, or transmit information about Affiliate, Nomad, or the users of the materials or websites.

SECTION 6 - DISCLAIMERS
Neither party warrants that its services or website will be uninterrupted or error free, nor does either party make any warranty as to the performance or any results that may be obtained by use of the services or website.

SECTION 7 – INDEPENDENT CONTRACTOR
Affiliate shall provide the services set forth in this Agreement as an independent contractor, and Affiliate shall not act as an employee, agent, or broker of Nomad. As an independent contractor, Affiliate will be solely responsible for paying any and all taxes levied by applicable laws on its compensation. Affiliate understands that Nomad will not withhold any amounts for payment of any taxes from Affiliate’s compensation.

SECTION 8 - TERMINATION
Either party may terminate this Agreement for any reason and without cause by providing fifteen (15) days’ prior written notice to the other party. 

SECTION 9 - ASSIGNMENT
Neither party shall assign any of its rights under this Agreement or delegate the performance of any of the obligations or duties hereunder without the prior written consent of the other party, which consent shall not be unreasonably withheld.  Any attempt by a party to so assign, transfer, or subcontract any rights, duties, or obligations arising hereunder shall be void and of no effect.

SECTION 10 - NOTICES
Any notices required by this Agreement shall be deemed received on (a) the day of delivery if delivered by hand during receiving party’s regular business hours or by e-mail or facsimile before or during receiving party’s regular business hours or (b) on the second business day following deposit in the United States mail, postage prepaid, to the addresses set forth below or to such other addresses as the parties may, from time to time, designate in writing pursuant to the provisions of this section.

LotusFlare, Inc.
Attention:  Head of Business Operations

2880 Lakeside Drive

Suite 331

Santa Clara, CA 95054

E-mail: [email protected]

Affiliate:
At the address indicated below.

SECTION 11 – GOVERNING LAW AND JURISDICTION

This Agreement is to be construed in accordance with and governed by the laws of the State of California.  Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the State of California with respect to any action brought under this Agreement.  

SECTION 12 - SEVERABILITY
If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under present or future laws, such provisions shall be fully severable, this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect.

SECTION 13 – LIMITATION OF LIABILITY 

In no event shall either party be liable to the other or any third party for loss of profit, loss of business, loss of business opportunity, loss of market share, damage to the goodwill or reputation of any party or its products, or for any special, indirect, incidental, punitive, exemplary, or consequential damages however caused and under any theory of liability whether based in contract (including indemnity, breach of warranty or representation or other breach of contract), tort (including negligence), or otherwise.  The foregoing limitations shall apply regardless of whether such party has been advised of the possibility of such damages and notwithstanding the failure of essential purpose of any limited remedy stated herein.

SECTION 14 – INDEMNIFICATION

Each party shall indemnify and hold harmless the other party and such party’s parent companies, subsidiaries, successors, and assigns and their respective officers, directors, and employees from and against all claims, demands, suits, actions, fines, penalties, damages, and other costs and expenses including reasonable attorney’s fees to the extent resulting from or caused by the indemnifying party’s acts, omissions, negligence, or willful misconduct and from any claim of infringement including patent, trademark, copyright, industrial design right, misuse, or misappropriation of trade secret or other proprietary right under applicable law related to the use of drawings, designs, or other relevant materials or information developed or supplied by the indemnifying party.  

SECTION 15 – ENTIRE AGREEMENT AND AMENDMENTS
This Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications, and agreements, whether written or oral, between the parties relating to the subject matter hereof and all past courses of dealing or industry custom. No modification of or amendment to this Agreement shall be effective unless in writing and signed by each of the parties.

SECTION 16 - WAIVER
The waiver by either party of a breach of or a default under any provision of this Agreement shall not be effective unless in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.

SECTION 17 - CONFIDENTIALITY

Each party shall retain as confidential and not disclose to third parties during and for three (3) years subsequent to the term of this Agreement all information and data furnished to it by the other party that relate to the other party's manufacturing or other processes, technologies, formulae, procedures, methods, trade secrets, ideas, improvements, inventions, computer programs, identity of suppliers or customers, terms of agreements between it and its suppliers or customers, or any pricing or financial information that are obtained or acquired by the receiving party in connection with this Agreement (“Confidential Information”). 

Nothing herein is meant to prevent nor shall it be interpreted as preventing either party from disclosing and/or using Confidential Information when it is clearly established that such information was (i) actually known to the receiving party before being obtained or derived from the transmitting party; (ii) generally available to the public through no fault of the receiving party; (iii) obtained or acquired in good faith at any time by the receiving party from a third party who had the right to disclose it; (iv) disclosed or used after obtaining a written release from the transmitting party authorizing such disclosure of use; or (v) when disclosure is required by law.

If either party becomes legally compelled by oral questions, interrogatories, requests for information or documents, subpoena, civil investigative demand, order of a court of competent jurisdiction or other similar process to disclose Confidential Information of the other party, it will provide the other party with prompt written notice so that the other party may seek a protective order or other appropriate remedy to protect the confidentiality of the information.  If that disclosure is, nevertheless, required, only that portion of the Confidential Information that is legally required will be furnished.  The foregoing obligations shall survive the termination or expiration of this Agreement.

SECTION 18 – FORCE MAJEURE

A party’s failure or inability to meet its obligations or otherwise perform under this Agreement shall not, if caused by a Force Majeure, as hereinafter defined, constitute a default or breach under this agreement or otherwise subject the party to any liability to the other.  For purposes of this Agreement, the term “Force Majeure” shall mean any cause beyond the reasonable control of the party, whether foreseeable or not, that prevents the party, directly or indirectly, from performing all or any portion of its obligations under this Agreement including, but not limited to, acts of God; storms; floods; excessive ice or snow; interruptions in transportation; shortages, interruptions, or difficulty in obtaining power, fuel, raw materials, or equipment; embargoes; government intervention; acts of war; acts of terrorism; insurrection; riots; labor disputes, strikes, lock-outs or other work stoppages; explosions; and fires.