MUSCLEPHARM BRAND AMBASSADOR AGREEMENT
Effective Date: May 10, 2024
THE AGREEMENT:
This Ambassador Agreement (hereinafter called the "Agreement") is provided by MP Acquisition Corp., hereinafter referred to as "Company" or “MusclePharm”. This Agreement is a legal document between you and the Company that describes the ambassador relationship in which we are entering. This Agreement covers your responsibilities as an Ambassador and our responsibilities to you. Please ensure you read and understand the entirety of this document, as well as have a lawyer's assistance if you desire, because each of the terms of this Agreement are important to our working relationship.
DEFINITIONS
The parties referred to in this Agreement shall be defined as follows:
- Company, Us, We: As we describe above, we'll be referred to as the Company. Us, we, our, ours and other first-person pronouns will also refer to the Company, as well as all employees or legal agents of the Company.
- You, the Ambassador: You will be referred to as the "Ambassador." You'll also be referred to throughout this Agreement with second-person pronouns such as You, Your, or Yours.
- Parties: Collectively, the parties to this Agreement (the Company and You) will be referred to as "Parties" or individually as "Party."
- Ambassador Program: The program we've set up for our ambassadors as described in this Agreement.
- Ambassador Application: The fully completed form which must be provided to us for consideration of your inclusion in the Ambassador Program. You can access the application at: https://musclepharm.com/pages/brand-ambassadors/
- Website: The website located at: https://musclepharm.com/pages/brand-ambassadors/ will be referred to as Website.
ASSENT & ACCEPTANCE
By submitting an application to our Ambassador Program, you warrant that you have read and reviewed this Agreement and that you agree to be bound by it. If you do not agree to be bound by this Agreement, please do not submit an application to our Ambassador Program. This Agreement specifically incorporates by reference any Terms of Conditions, Privacy Policies, End-User License Agreements, Social Medial Policy, or other legal documents which we may have on our website.
AGE RESTRICTION
You must be at least 18 (eighteen) years of age to join our Ambassador Program or use this Website. By submitting an application to our Ambassador Program, you represent and warrant that you are at least 18 years of age and may legally agree to this Agreement. The Company assumes no responsibility or liability for any misrepresentation of your age.
PROGRAM SIGN-UP
In order to sign up for our Ambassador Program, you will first be asked to submit an Ambassador Application. The Ambassador Application may be found at the following website: https://musclepharm.com/pages/brand-ambassadors/
Submitting an Ambassador Application does not guarantee inclusion in the Ambassador Program. The Company evaluates every application and are the sole and exclusive decision-makers on Ambassador acceptance. If we choose not to allow your inclusion in the Ambassador Program, we will attempt to notify you in a reasonable manner. If you do not hear from us within a reasonable time frame, please consider your application rejected. We are not obligated to provide you any explanation for your rejection, but please be advised we may reject applicants for any reason or manner.
If your Ambassador Application is rejected, you may not reapply. If your Ambassador Application is accepted, each of the terms and conditions in this Agreement apply to your participation. We may also ask for additional information to complete your Ambassador Application or for you to undertake additional steps to ensure eligibility in the Ambassador Program such as a W-9 form.
NON-EXCLUSIVITY
This Agreement does not create an exclusive relationship between you and us. You are free to work with similar Ambassador program providers in any category. This agreement imposes no restrictions on us to work with any individual or company we may choose.
AMBASSADOR PROGRAM
After your acceptance in the Ambassador Program, you must ensure your account is set up thoroughly, including specific payout information and location (such as a PayPal or online account which we may use to post payment).
Please be advised the below is a general description of the Ambassador Program. Everything contained in this subsection is subject to the specific terms and conditions throughout the rest of this Agreement.
We will provide you with a specific link or links which correspond to certain products we are offering for sale (collectively, the "Link"). The Link will be keyed to your identity and will send online users to the Company's website at www.musclepharm.com. You hereby agree to fully cooperate with us regarding the Link and that you will explicitly comply with all of the terms of this Agreement for the promotion of the Link at all times. We may modify the specific link or links and will notify you if we do so. You agree to only use links which are prior approved by us and to display the Link prominently on your website or social media page, as described in your Ambassador Application (collectively, the "Ambassador Site").
Each time a user clicks through the Link posted on the Ambassador Site, completes the sale of the product or service, and we determine it is a Qualified Purchase, as described below, you will be eligible to receive the following specific amount: 20% commission on each Qualified Purchase.
SPECIFIC TERMS APPLICABLE
Company will determine whether payout is permissible in our sole and exclusive discretion. We reserve the right to reject clicks and/or sales that do not comply with the terms of this Agreement.
Processing and fulfillment of orders will be our responsibility. We will also provide real-time data regarding your account through the portal you can access on our website.
As described above, in order to be eligible for payout, user purchases must be "Qualified Purchases." Qualified Purchases include the following:
- Must not be referred by any other partner or Ambassador links of the Company (in other words, Qualified Purchases are only available through your specific Ambassador Link);
- May not be purchased by an already-existing partner or Ambassador of the Company;
- May not be purchased prior to the Ambassador joining the Ambassador Program;
- May only be purchased through a properly-tracking Ambassador Link;
- May not be purchased by a customer in violation of any of our legal terms or Acceptable Use Policy;
- May not be fraudulent in any way, in the Company's sole and exclusive discretion;
- May not have been induced by the Ambassador offering the customer any coupons or discounts;
PAYOUT INFORMATION
Payouts will only be available when the Company has your current address information as well as accounting and tax documentation such as your W-9 form.
You will earn a commission of 20% on any completed orders for products made by Customers using the tools provided to you by MusclePharm to make those orders, such as promo codes, store links and sampler links. You will be paid via PayPal or via in-store credit (per your choosing) on the fifteenth of each month for the previous month’s earnings.
If your only purpose in joining the Ambassador Program is to obtain the benefits without following the guidelines, you will be dismissed from the program, and further actions may be taken. MusclePharm tracks and reconciles every sale. MusclePharm also tracks and records every individual who receives any of the incentives provided by MusclePharm.
For any changes in your address or accounting information, you must notify us immediately at accounts.payable@musclepharm.com.
We explicitly reserve the right to change payout information in our sole and exclusive discretion. If we do so, you will be notified.
For any disputes as to payout, the Company must be notified at accounts.payable@musclpeharm.com within thirty days of your receipt of the payout. We will
review each dispute notification as well as the underlying payout transaction to which it is related. Disputes filed after thirty days of payout will not be addressed.
REPORTS
You may log into your account with us to review reports related to your affiliation, such as payout reports and qualified click and/or purchase information. Please be advised however, that not all listed qualifying clicks and/or purchases have been fully reviewed for accuracy in the reports viewable by you in real-time and therefore may be subject to change prior to payout.
TERM, TERMINATION & SUSPENSION
The term of this Agreement will begin when we accept you into the Ambassador Program. It can be terminated by either Party at any time with or without cause.
You may only earn payouts as long as you are an Ambassador in good standing during the term. If you terminate this Agreement with us, you will qualify to receive payouts earned prior to the date of termination.
If you fail to follow the terms of this Agreement or any other legal terms we have posted anywhere on our website or websites, you forfeit all rights, including the right to any unclaimed payout.
We specifically reserve the right to terminate this Agreement if you violate any of the terms outlined herein, including, but not limited to, violating the intellectual property rights of the Company or a third party, failing to comply with applicable laws or other legal obligations, and/or publishing or distributing illegal material.
At the termination of this Agreement, any provisions that would be expected to survive termination by their nature shall remain in full force and effect.
INTELLECTUAL PROPERTY
You agree that the intellectual property owned by the Company includes all copyrights, trademarks, trade secrets, patents, and other intellectual property belonging to the Company ("Company IP").
Subject to the limitations listed below, we hereby grant you a non-exclusive, non-transferable, revocable license to access our websites in conjunction with the Ambassador Program and use the Company IP solely and exclusively in conjunction with identifying our Company and brand on the Ambassador Site to send customers to the Ambassador links we provide. You may not modify the Company IP in any way and you are only permitted to use the Company IP if you are an Ambassador in good standing with us.
We may revoke this license at any time and if we find that you are using the Company IP in any manner not contemplated by this Agreement, we reserve the right to terminate this Agreement.
Other than as provided herein, you are not permitted to use any of the Company IP or any confusingly similar variation of the Company IP without our express prior written permission. This includes a restriction on using the Company IP in any domain or website name, in any keywords or advertising, in any metatags or code, or in any way that is likely to cause consumer confusion.
Please be advised that your unauthorized use of any Company IP shall constitute unlawful infringement and we reserve all of our rights, including the right to pursue an infringement suit against you in federal court. You may be obligated to pay monetary damages or legal fees and costs.
You hereby provide us a non-exclusive license to use your name, trademarks and service marks if applicable and other business intellectual property to advertise our Ambassador Program.
MODIFICATION & VARIATION
The Company may, from time to time and at any time, modify this Agreement. You agree that the Company has the right to modify this Agreement or revise anything contained herein. You further agree that all modifications to this Agreement are in full force and effect immediately upon posting on the Website and that modifications or variations will replace any prior version of this Agreement unless prior versions are specifically referred to or incorporated into the latest modification or variation of this Agreement. If we update or replace the terms of this Agreement, we will let you know via electronic means, which may include an email. If you don't agree to the update or replacement, you can choose to terminate this Agreement as described below.
- To the extent any part or sub-part of this Agreement is held ineffective or invalid by any court of law, you agree that the prior, effective version of this Agreement shall be considered enforceable and valid to the fullest extent.
- You agree to routinely monitor this Agreement and refer to the Effective Date posted at the top of this Agreement to note modifications or variations. You further agree to clear your cache when doing so to avoid accessing a prior version of this Agreement.
RELATIONSHIP OF THE PARTIES
Nothing contained within this Agreement shall be construed to form any partnership, joint venture, agency, franchise, or employment relationship. You are an independent contractor of the Company and will remain so at all times.
ACCEPTABLE USE
You agree not to use the Ambassador Program or our Company for any unlawful purpose or any purpose prohibited under this clause. You agree not to use the Ambassador Program in any way that could damage our Company websites, products, services, or the general business of the Company. You further agree not to use the Ambassador Program:
- To harass, abuse, or threaten others or otherwise violate any person's legal rights;
- To violate any intellectual property rights of the Company or any third party;
- To upload or otherwise disseminate any computer viruses or other software that may damage the property of another;
- To perpetrate any fraud;
- To engage in or create any unlawful gambling, sweepstakes, or pyramid scheme;
- To publish or distribute any obscene or defamatory material;
- To publish or distribute any material that incites violence, hate, or discrimination towards any group;
- To unlawfully gather information about others.
AMBASSADOR OBLIGATIONS & FTC COMPLIANCE
You are responsible for ensuring operation and maintenance of the Ambassador Site, including technical operations, written claims, links, and accuracy of materials. You must ensure, as noted above, that the Ambassador Site does not infringe upon the intellectual property rights of any third party or otherwise violate any legal rights.
We may monitor your account, as well as clicks and/or purchases coming through your account. If we determine you are not in compliance with any of these the terms of this Agreement, we have the right to immediately terminate your participation in the Ambassador Program.
We require all of our Ambassadors to comply with all applicable statutes, regulations, and guidelines set by the federal government, through the Federal Trade Commission, as well as state and local governments as mandated. The Federal Trade Commission requires that affiliate/ambassador relationships, such as the relationship between you and the Company, be disclosed to consumers.
We recommend that you seek independent legal counsel to advise you of our obligations to disclose in this manner.
You are required to post a conspicuous notice on your website that includes #musclepharmambassador and #sponsored to show your association to the Company and the Ambassador Program.
The Ambassador marketing program is sponsored by MP Acquisition Corp. whereby Ambassadors are eligible to receive compensation through the sale of goods made through this website offered to all of our Ambassadors registered under the program. We may also accept advertising and sponsorships from commercial businesses or receive other forms of advertising compensation. This disclosure is intended to comply with the US Federal Trade Commission Rules on marketing and advertising, as well as any other legal requirements which may apply. We also require you to comply with any and all applicable data privacy and security laws and regulations, including all of those which may impact your country of residence or your visitors. Such regulations include, but are not limited to, any applicable laws in the United States or the General Data Protection Regulation of the European Union. We also require that you implement adequate organizational and technical measures to ensure an appropriate level of security for the data that you process. Further, you hereby agree to comply with any requests which we may make to you regarding compliance with the General Data Protection Regulation or requests which you may receive from data subjects.
If we find you are not in compliance with any of the requirements of this subpart, we may terminate our relationship with you at our sole and exclusive discretion.
DATA LOSS
The Company does not accept responsibility for the security of your account or content. You agree that your participation in the Ambassador Program is at your own risk.
INDEMNIFICATION
You agree to defend and indemnify the Company and any of its agents (if applicable) and hold Company harmless against any and all legal claims and demands, including reasonable attorney's fees, which may arise from or relate to your use or misuse of the Ambassador Program, your breach of this Agreement, or your conduct or actions. You agree that the Company shall be able to select its own legal counsel and may participate in its own defense if the Company wishes.
SPAM POLICY
You are strictly prohibited from using the Ambassador Program for illegal spam activities, including gathering email addresses and personal information from others, or sending any mass commercial emails.
ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties with respect to the Ambassador Program. This Agreement supersedes and replaces all prior or contemporaneous agreements or understandings, written or oral.
SERVICE INTERRUPTIONS
The Company may need to interrupt your access to the Ambassador Program to perform maintenance or emergency services on a scheduled or unscheduled basis. You agree that your access may be affected by unanticipated or unscheduled downtime, for any reason, but that the Company shall have no liability for any damage or loss caused as a result of such downtime.
NO WARRANTIES
You agree that your use of the Ambassador Program is at your sole and exclusive risk and that any services provided by us are on an "As Is" basis. The Company hereby expressly disclaims any and all express or implied warranties of any kind, including, but not limited to, the implied warranty of fitness for a particular purpose and the implied warranty of merchantability. The Company makes no warranties that the Ambassador Program will meet your needs or that it will be uninterrupted, error-free, or secure. The Company also makes no warranties as to the reliability or accuracy of any information. You agree that any damage that may occur to you, through your computer system, or as a result of loss of your data from your use of the Ambassador Program is your sole responsibility and that the Company is not liable for any such damage or loss.
LIMITATIONS OF LIABILITY
Under no circumstances shall the Company be liable for any direct, indirect, incidental, special, punitive or consequential damages that result from the use of or inability to use the website, including but not limited to reliance by a Consumer on any information obtained on the website, or that result from any mistakes, omissions, interruptions, deletions, files, e-mail errors, defects, or any failure of performance. You hereby acknowledge that this provision shall apply to all content, merchandise and services available through the website as some states do not allow the exclusion or limitation of liability for consequential or incidental damages. In such states, this disclaimer, exclusions, or limitations may not apply to you, and you might have additional rights; however, you acknowledge that the Company and its Ambassadors shall be limited to the fullest extent permitted by law. If you are dissatisfied with any portion of the website or with any of these terms and conditions, your sole and exclusive remedy is to discontinue using the website. Also, if a product purchased through this program is dissatisfactory, your sole remedy is to return the product for a refund.
GENERAL PROVISIONS:
- LANGUAGE: All communications made or notices given pursuant to this Agreement shall be in the English language.
- JURISDICTION, VENUE & CHOICE OF LAW: Through your participation in the Ambassador Program, you agree that Nevada shall govern any matter or dispute relating to or arising out of this Agreement, as well as any dispute of any kind that may arise between you and the Company, with the exception of its conflict of law provisions. In case any litigation specifically permitted under this Agreement is initiated, the Parties agree to submit to the personal jurisdiction of the state and federal courts of the following county: Clark County, Nevada. The Parties agree that this choice of law, venue, and jurisdiction provision is not permissive, but rather mandatory in nature. You hereby waive the right to any objection of venue, including assertion of the doctrine of forum non conveniens or similar doc.
- ARBITRATION: In case of a dispute between the Parties relating to or arising out of this Agreement, the Parties shall first attempt to resolve the dispute personally and in good faith. If these personal resolution attempts fail, the Parties shall then submit the dispute to binding arbitration. The arbitration shall be conducted in the following county: Clark County. The arbitration shall be conducted by a single arbitrator, and such arbitrator shall have no authority to add Parties, vary the provisions of this Agreement, award punitive damages, or certify a class. The arbitrator shall be bound by applicable and governing Federal law as well as the law of Nevada. Each Party shall pay their own costs and fees. Claims necessitating arbitration under this section include, but are not limited to: contract claims, tort claims, claims based on Federal and state law, and claims based on local laws, ordinances, statutes or regulations. Intellectual property claims by the Company will not be subject to arbitration and may, as an exception to this subpart, be litigated. The Parties, in agreement with this sub-part of this Agreement, waive any rights they may have to a jury trial in regard to arbitral claims.
- ASSIGNMENT: This Agreement, or the rights granted hereunder, may not be assigned, sold, leased or otherwise transferred in whole or part by you. Should this Agreement, or the rights granted hereunder, by assigned, sold, leased or otherwise transferred by the Company, the rights and liabilities of the Company will bind and insure to any assignees, administrators, successors, and executors.
- SEVERABILITY: If any part or sub-part of this Agreement is held invalid or unenforceable by a court of law or competent arbitrator, the remaining parts and sub-parts will be enforced to the maximum extent possible. In such condition, the remainder of this Agreement shall continue in full force.
- NO WAIVER: In the event that we fail to enforce any provision of this Agreement, this shall not constitute a waiver of any future enforcement of that provision or of any other provision. Waiver of any part or sub-part of this Agreement will not constitute a waiver of any other part or sub-part.
- FORCE MAJEURE: The Company is not liable for any failure to perform due to causes beyond its reasonable control including, but not limited to, acts of God, acts of civil authorities, acts of military authorities, riots, embargoes, acts of nature and natural disasters, and other acts which may be due to unforeseen circumstances.
- ELECTRONIC COMMUNICATIONS PERMITTED: Electronic communications are permitted to both Parties under this Agreement, including e-mail or fax. For any questions or concerns, please email Company at the following address: MPLegal@musclepharm.com.
