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1. Definitions and Interpretation

1.1 Definitions

In this Agreement the following definitions apply:

Ambassador means the key person set out in item 1 of SCHEDULE 1
Ambassador’s Commission means the commission to be paid to the Ambassador by the Company for Ambassador referred sales as set out in SCHEDULE 4.
Commencement Date means the date set out in item 1 of SCHEDULE 1;
Discount Codes means the discount code or codes set out in item 1 of SCHEDULE 4.
Endorsement Services means the promotional and endorsement services provided by the Ambassador that are referred to in clause 3(a) and set out in SCHEDULE 2;
Intellectual Property means any and all intellectual and industrial property rights that are described in SCHEDULE 3;
Products means the goods to be endorsed by the Ambassador that are described in SCHEDULE 5, including new Products that may be produced by the Company as agreed in writing between the parties;
Promotional Material means the promotional material for the Products created by the Ambassador using the Intellectual Property, including name, likeness or signature of the Ambassador, and the photographs and video material including the Ambassador that the Ambassador creates as the result of the Ambassador providing the Endorsement Services;
Term means the period of time described in clause 2 and item 3 of SCHEDULE 1;
Territory means the geographical locations described in item 4 of SCHEDULE 1;

1.2 Interpretation

In this Agreement:

a reference in this Agreement to a statute or a section of a statute includes all amendments to that statute or section passed in substitution for the statute or section referred to and incorporating any of its provisions;
“related body corporate” will have the meaning as defined in the Corporations Act 2001 (Cth);
this Agreement must not be interpreted adversely to a party only because that party was responsible for preparing it;
headings are for convenience only and do not affect the interpretation of this Agreement;
references to a person or words denoting a person includes a company, statutory corporation, partnership, joint venture and association, and includes that person’s legal personal representatives, executors, administrators, successors and permitted assigns;
every obligation entered into by two or more parties binds them jointly and each of them severally;
where any word or phrase is defined in this Agreement, any other grammatical form of that word or phrase will have a corresponding meaning;
“includes”, “including” and similar expressions are not words of limitation;
all monetary amounts are in Australian dollars; and.
reference to any agreement or other document annexed to or referred to in this Agreement includes any amendments to it and any documents in addition to or in substitution for it which has been approved in writing by the parties to this Agreement.

2. Commencement and Term

This Agreement commences on the Commencement Date and continues subject to any rights of early termination under clause 8 for a period of time set out in item 3 of SCHEDULE 1.

3. Endorsement and Promotion of Products

The Ambassador agrees to:
1. provide the non-exclusive Endorsement Services to the Company in the Territory for the period of time set out in item 3 of SCHEDULE 1 starting on the Commencement Date set out in item 1 of SCHEDULE 1;
2. use reasonable endeavours to promote the Products in a matter consistent with the authorised use of the Products on the Ambassador’s social media accounts and website;
This Agreement does not affect or restrict the Ambassador’s right to advertise, endorse or promote any goods and services in the Territory that do not compete with the Company’s Products.

4. Intellectual Property

The Ambassador acknowledges that all Intellectual Property belong to the Company absolutely for its own use and benefit.
The Ambassador grants to the Company a non-exclusive licence to use the Promotional Materials on the Company’s social media accounts, websites and other promotional materials and this clause shall endure beyond the termination of this agreement.

5. Warranties

The Ambassador warrants during the Term of this Agreement that:

the Ambassador has the right to market and promote the name, personality, likeness, reputation, signature and visual image of the Ambassador in a manner contemplated by this Agreement;
no similar licence has been granted to any other party in order to promote or endorse any product or service that competes with Products;
the execution of the Agreement or performance by the Ambassador will not cause it to be in breach of any agreement to which it is a party;
the Ambassador will not advocate illegal activity or be obscene, defamatory or otherwise violate the rights of any nature whatsoever of any person;
the Ambassador will not communicate or publish any material that is inconsistent with a positive image or goodwill relating to the Company;
it is responsible for all costs and expenses in relation to this Agreement, including the provision of the Endorsement Services; and.
the Ambassador will not do anything which will or will be likely to bring the Ambassador, the Company or the Product into public disrepute.

6. Ambassador's obligations

The Ambassador must provide copies of all Promotional Materials to the Company as soon as is practicable after the production of the Promotional Materials.
The Ambassador agrees that it will not during the Term of this Agreement or any extension or renewal provide its professional services in any manner whatsoever to any person or Company with the purpose or effect or likely effect of promoting any goods or services that compete in the Territory with the Product.
The Ambassador must keep confidential all information relating to the business of the Company out of the public domain including but not limited to business and marketing plans, projections, arrangements and agreements with third parties and customer information imparted to the Ambassador during the period of this Agreement.
Regardless the provisions of clause 6(b) the Ambassador may disclose information if and to the extent that:
1. such disclosure is forced by laws, regulations or orders;
2. the information is generally available in the public domain except where that is a result of a disclosure in breach of this Agreement; and
3. the Ambassador can prove that it knew the information before the information was disclosed to it by the Company.

7. Company’s Obligation

The Company agrees that it:
1. shall provide the Products to the Ambassador to enable the Ambassador to provide the Endorsement Services;
2. shall provide merchandise to the Ambassador for the Ambassador to wear in the provision of the Endorsement Services;
3. has the discretion to use the Promotional Material on the Company’s social media accounts and website and the Company’s other promotional material;
4. shall provide support to the Ambassador to enable the Ambassador to understand and use the functionality of the Products;
5. has the discretion to provide the Ambassador with new Products developed by the Company;
6. will enable the Discount Codes to provide a discount to the Ambassador’s referred clients who purchase the Product’s on the Company’s website;
7. will pay the Ambassador’s Commission in accordance with the terms stated in SCHEDULE 4.

8. Termination

This Agreement may be terminated by the Company in any of the following circumstances:
1. with 7 days’ written notice for convenience;
2. if during the Term the Ambassador is unable to perform the services required to be provided under this Agreement by reason of its death, illness or physical or mental disability;
3. if the Ambassador is in breach of any terms of this Agreement which have not been rectified within 7 days of notice being given in writing by the Company specifying the nature of such default and matters to be attended in order to rectify the default;
4. if the Ambassador is arrested or convicted of any criminal offence other than an offence which in the reasonable opinion of the Company does not affect the advertising and promotion of the Product; and
5. if the Ambassador does anything which in the reasonable opinion of the Company is a breach of clause 5(d) or will or will be likely to bring the Ambassador, the Company or the Product into public disrepute.
This Agreement may be terminated by the Ambassador in any of the following circumstances:
1. if the Company breaches any terms of this Agreement which has not been rectified within 7 days of the Ambassador providing such notice in writing specifying the nature of default;
2. upon the happening of any of the following insolvency events:
  1. a receiver, receiver and manager, administrator, liquidator or similar officer is appointed to the Company or any of its assets;
  2. the Company enters into, or resolves to, enter into, a scheme or arrangement, compromise or composition with any class of creditors;
  3. a resolution is passed or an application to a court is taken for the winding up, dissolution, official management or administration of the Company; or
  4. anything having a substantially similar effect to any of the events specified above happens under the law of any applicable jurisdiction.
3. On the expiry or early termination of this Agreement, Ambassador will cease to provide the Endorsement Services.

9. Indemnity

The Ambassador agrees to hold the Company, its officers, agents, assignees and employees harmless from any liability from any injury, damage or claim suffered by the Ambassador arising from or relating to this Agreement and the Ambassador’s provision of the Endorsed Services.

10. Dispute Resolution

If a dispute arises in connection with this Agreement, a party may give the other party a notice specifying the dispute.
Within 5 business days after the notice is given, each party may nominate in writing a representative to settle the dispute on its behalf.
Within 7 business days after the notice is given, the parties must confer to resolve the dispute or to decide the method of resolving the dispute. Each party must use its best efforts to resolve the dispute.
Unless the parties otherwise agree, the dispute must be referred to mediation if not resolved within 14 business days after the notice is given.
The parties must appoint a mediator within 21 business days after the notice is given. If the parties fail to agree on a mediator, the mediator must be nominated by the President of the Law Institute of Victoria.
Unless otherwise agreed by the parties in writing, the mediator’s decision is not binding on the parties. The role of the mediator is to assist in negotiating a resolution to the dispute.
If the dispute is not resolved within 21 business days after the mediator’s appointment, then the mediation ends.
The dispute resolution process does not affect any party’s obligations under this Agreement.
Each party is to pay its own costs of the mediation process.
The parties are to pay, in equal shares, the mediator’s costs and any other third party costs required by the mediator.
If a dispute arises in relation to this Agreement, each party must keep confidential:
1. all information or documents disclosed in the course of resolving the dispute before the appointment of the mediator;
2. all information or documents disclosed in the course of the mediation;
3. all information and documents about the existence, conduct, status or outcomes of the mediation; and
4. all information and documents relating to the terms of any mediation settlement agreement.
Neither party may commence court proceedings, in any jurisdiction, until the mediation ends. This does not affect either party’s right to seek urgent injunctive or declaratory relief.

11. Notices

All notices required or permitted hereunder must be in writing in English and the address for service of notices is either the postal address or email address of the party to be served as stated in this Agreement or any postal address or email address such party may have designated in writing as the address for service of notices.
Notices sent to the recipient’s postal address must be sent by registered or certified mail, return receipt requested.
Unless otherwise specified, notices must be deemed to have been delivered when receipt is acknowledged by the recipient or 72 hours from the time the notice is sent (whichever is sooner).
In relation to email, receipt is deemed to be acknowledged by the recipient by a delivery receipt notification generated by the recipient’s email system after sending of the email containing the notice or to which the notice is attached. Emailing notices will constitute sufficient and effective delivery when delivered to the recipient’s email account, whether or not the specific electronic communication is accessed or read.

12. Limitation on assignment

The Ambassador must not assign all or any of its rights given to it under this Agreement without the prior written consent of the Company, which consent the Company may grant or not in its absolute discretion;
The Company may at its discretion assign all or any of its rights under this Agreement.

13. Further agreements

Each party must execute such agreements, deeds and documents and do or cause to be executed or done all such acts and things as necessary to give effect to this Agreement.

14. General provisions

No partnership or agency relationship
Nothing contained in this Agreement must be deemed to constitute partnership between the parties and nothing contained in this Agreement must deem either party to be the agent of the other party and the Affiliate must not hold itself out as, engage in any conduct or make any representation which may suggest to any person that the Licensee is for any purposes, the agent of the Company.
Electronic Execution
The parties agree that this Agreement may be delivered and executed electronically.
Confidentiality
The parties acknowledge and covenant to keep the contents of this Agreement and the obligations of each party arising from this Agreement confidential and will not make any disclosures in this regard to any other party or entity unless as required by law.
Entire agreement
This Agreement sets out the entire agreement between the parties and it replaces all previous communications, representations, inducements, undertakings, agreements and arrangements between the parties in respect of its subject matter and this Agreement may not be modified except by written agreement signed by each party.
No waiver
Failure to exercise, or any delay in exercising, any right, power or remedy by a party does not operate as a waiver. A single or partial exercise of any right, power or remedy does not preclude any further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the party granting that waiver unless made in writing.
Severance
If any provision of this Agreement is void, illegal or unenforceable, it may be severed without affecting the enforceability of the other provisions in this Agreement.
Jurisdiction
This Agreement is subject to the laws of the State of Victoria with the Courts of the State of Victoria having exclusive jurisdiction over any disputes arising in respect of this Agreement.

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