BRAND AMBASSADOR AGREEMENT

This Brand Ambassador Agreement (the “Agreement”) is made between Kogalla, an LLC (“Company”), headquartered in Utah, and you, the Brand Ambassador (“Contractor”).  In consideration of the mutual promises contained herein, the parties agree as follows:

 

1. SERVICES AND COMPENSATION

1.1 Services.  Subject to the terms and conditions of this Agreement and at Company’s request and direction, Contractor will perform for Company the services (“Services”) described in Exhibit A during the term of this Agreement.

1.2 Compensation.  As consideration for Contractor’s proper performance of the Services, Company will pay Contractor the compensation set forth in Exhibit A.

2. TERM AND TERMINATION

2.1 Term; Termination.  This Agreement commences when the application is approved and will continue until the termination as provided below.  Company may terminate this Agreement by giving 30 days prior written notice to Contractor.  Company may terminate this Agreement immediately and without prior notice if Contractor refuses to or is unable to perform the Services, is in breach of any material provision of this Agreement, or Company is dissatisfied with the quality of Contractor’s work.

2.2 Survival.  Upon termination, all rights and duties of the parties toward each other cease except that: (a) within 30 days of the effective date of termination, Company will pay all amounts owing to Contractor for Services or Contractor will return to Company any amount paid to Contractor as a retainer that is not owed against Services; and (b) Sections 2, 3, 4, 5, 6, 7,  and 9 survive termination of this Agreement.

2.3 Return of Materials.  Upon the termination of this Agreement, or upon Company’s earlier request, Contractor will deliver to Company all of Company’s property and Confidential Information (as defined in Section 3.1) that is in Contractor’s possession or control.

3. CONFIDENTIALITY

3.1 Definition.  “Confidential Information” means any non public information that relates to the actual or anticipated business, research, or development of Company and any proprietary information, trade secrets, and know how of Company that is disclosed to Contractor by Company, directly or indirectly, in writing, orally, or by inspection or observation of tangible items.  Confidential Information includes, but is not limited to, research, product plans, products, services, customer lists, development plans, inventions, processes, formulas, technology, designs, drawings, marketing, finances, and other business information, including the existence and terms of this Agreement.  Confidential Information is the sole property of Company.

3.2 Exceptions.  Confidential Information does not include any information that: (a) was publicly known and made generally available in the public domain prior to the time Company disclosed the information to Contractor, (b) became publicly known and made generally available, after disclosure to Contractor by Company, through no wrongful action or inaction of Contractor or others who were under confidentiality obligations, or (c) was in Contractor’s possession, without confidentiality restrictions, at the time of disclosure by Company, as shown by Contractor’s files and records.

3.3 Nondisclosure and Nonuse.  Contractor will not, during and after the term of this Agreement, disclose the Confidential Information to any third party or use the Confidential Information for any purpose other than the performance of the Services on behalf of Company.  Contractor will take all reasonable precautions to prevent any unauthorized disclosure of the Confidential Information including, but not limited to, having each employee of Contractor, if any, with access to any Confidential Information, execute a nondisclosure agreement containing terms that are substantially similar to the terms contained in this Agreement. Pursuant to the Defend Trade Secrets Act of 2016, if Contractor is an individual, Contractor acknowledges that he/she shall not have criminal or civil liability under any Federal or State trade secret law for the disclosure of a trade secret that  (A) 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 (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.  In addition, if Contractor files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Contractor may disclose the trade secret to Contractor’s attorney and may use the trade secret information in the court proceeding, if Contractor (X) files any document containing the trade secret under seal; and (Y) does not disclose the trade secret, except pursuant to court order.

3.4 Former Client Confidential Information.  Contractor will not improperly use or disclose any proprietary information or trade secrets of any former or concurrent client or employer of Contractor or other person or entity.  Furthermore, Contractor will not bring onto the premises of the Company any unpublished document or proprietary information belonging to any client, person, or entity unless consented to in writing by the client, person, or entity.

3.5 Third Party Confidential Information.  Company has received, and in the future will receive, from third parties confidential or proprietary information subject to a duty on Company’s part to maintain the confidentiality of the information and to use it only for certain limited purposes.  Contractor owes Company and these third parties, during and after the term of this Agreement, a duty to hold this confidential and proprietary information in the strictest confidence and not to disclose it to any person or entity, or to use it except as necessary in carrying out the Services for Company consistent with Company’s agreements with these third parties.

4. OWNERSHIP

4.1 Assignment.  All works of authorship, designs, inventions, improvements, technology, developments, discoveries, and trade secrets conceived, made, or discovered by Contractor during the period of this Agreement or with respect to any period prior to this Agreement in which Contractor was performing Services to the Company, solely or in collaboration with others, that relate in any manner to the business of Company (collectively, “Inventions”) will be the sole property of Company.  In addition, Inventions that constitute copyrightable subject matter will be considered “works made for hire” as that term is defined in the United States Copyright Act.  To the extent that ownership of the Inventions does not by operation of law vest in Company, Contractor will assign (or cause to be assigned) and does hereby assign fully to Company all right, title, and interest in and to the Inventions, including all related intellectual property rights.

4.2 Further Assurances.  Contractor will assist Company and its designees in every proper way to secure Company’s rights in the Inventions and related intellectual property rights in all countries.  Contractor will execute all applications, specifications, oaths, assignments, and other instruments that Company deems necessary in order to apply for and obtain these rights and in order to assign and convey to Company, its successors, assigns, and nominees the sole and exclusive right, title, and interest in and to these Inventions, and any related intellectual property rights.

4.3 Pre Existing Materials.  Contractor will not, without Company’s prior written consent, incorporate any pre existing works or third party materials into the Inventions.  Additionally, Contractor has the right to assign and transfer rights to pre existing works and third party materials as specified in this Agreement.  If in the course of performing the Services, Contractor incorporates into any Invention any other work of authorship, invention, improvement, or proprietary information, or other materials owned by Contractor or in which Contractor has an interest in breach of this Agreement or otherwise, Contractor will grant and does now grant to Company a nonexclusive, royalty free, perpetual, irrevocable, worldwide license to reproduce, manufacture, modify, distribute, use, import, and otherwise exploit the material as part of or in connection with the Invention.

4.4 Attorney in Fact.  If Contractor’s unavailability or any other factor prevents Company from pursuing or applying for any application for any United States or foreign registrations or applications covering the Inventions and related intellectual property rights assigned to Company, then Contractor irrevocably designates and appoints Company as Contractor’s agent and attorney in fact.  Accordingly, Company may act for and in Contractor’s behalf and stead to execute and file any applications and to do all other lawfully permitted acts to further the prosecution and issuance of the registrations and applications with the same legal force and effect as if executed by Contractor.

4.5 License. Contractor grants Company the right to film, videotape, photograph and/or otherwise record Contractor in connection with this Agreement. Contractor also hereby grants to Company an irrevocable, universal, fully paid-up, royalty-free right and license to exhibit, exploit, publish, broadcast, display, reproduce and/or distribute Contractor’s name, picture, image, video, autograph, performance, voice, quotes, social media handle name and image, likeness, and/or biographical information (collectively, “Likeness”) on a worldwide basis in any manner, venue, format or media (whether now known or hereafter devised) including, without limitation, for advertising, marketing and promotional purposes, during and after the term of this Agreement, for internal, institutional, commercial and trade purposes, and archival and award submission purposes. For the avoidance of doubt, nothing herein shall limit Company’s use of materials that do not contain Contractor’s Likeness and Company may continue to use Contractor’s name and/or Likeness after the term of this Agreement in order to sell Company products.

5. CONTRACTOR WARRANTIES AND COVENANTS

As an inducement to Company entering into and consummating this Agreement, Contractor represents, warrants, and covenants as follows:

5.1 Representations; Enforceability. This Agreement constitutes a valid and binding obligation of Contractor that is enforceable in accordance with its terms.

5.2 Compliance with Company Policies.  Contractor will perform the Services in accordance with all policies and procedures provided by Company, including any third party policies and procedures that Company is required to comply with.

5.3 No Conflict.  The entering into and performance of this Agreement by Contractor does not and will not:  (a) violate, conflict with, or result in a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien, or encumbrance to which Contractor is a party or by which it or any of Contractor’s property is or may become subject or bound, or (b) violate any applicable law or government regulation.  Contractor will not grant any rights under any future agreement, nor will it permit or suffer any lien, obligation, or encumbrances that will conflict with the full enjoyment by Company of its rights under this Agreement.

5.4 Right to Make Full Grant.  Contractor has and will have all requisite ownership, rights, and licenses to fully perform its obligations under this Agreement and to grant to Company all rights with respect to the Inventions and related intellectual property rights to be granted under this Agreement, free and clear of any and all agreements, liens, adverse claims, encumbrances, and interests of any person or entity, including, without limitation, Contractor’s employees, agents, artists, and contractors and their contractors’ employees, agents, and artists, who have provided, are providing, or will provide services with respect to the development of the Inventions.

5.5 Noninfringement.  Nothing contained in the Inventions or required in order for Contractor to create and deliver the Inventions under this Agreement does or will infringe, violate, or misappropriate any intellectual property rights of any third party.  Further, no characteristic of any Invention does or will cause manufacturing, using, maintaining, or selling the Invention to infringe, violate, or misappropriate the intellectual property rights of any third party.

5.6 No Pending or Current Litigation.  Contractor is not involved in litigation, arbitration, or any other claim and knows of no pending litigation, arbitration, other claim, or fact that may be the basis of any claim regarding any of the materials Contractor has used or will use to develop or has incorporated or will incorporate into the Inventions to be delivered under this Agreement.

5.7 No Harmful Content.  The Inventions as delivered by Contractor to Company will not contain matter that is injurious to end users or their property, or which is scandalous, libelous, obscene, an invasion of privacy, or otherwise unlawful or tortious or which contains any computer viruses, booby traps, time bombs, or other programming designed to interfere with the normal functioning of the Invention or Company’s or an end user’s equipment, programs, or data

5.8 Services.  The Services will be performed in a timely, competent, professional, and workmanlike manner by qualified personnel.  

6. INDEMNIFICATION

6.1 Indemnification.  Contractor will indemnify, defend, and hold harmless Company and its directors, officers, and employees from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from or in connection with: (a) any negligent, reckless, or intentionally wrongful act of Contractor or Contractor’s assistants, employees, or agents, (b) any breach by Contractor or Contractor’s assistants, employees, or agents of any of the covenants, warranties, or representations contained in this Agreement, (c) any failure of Contractor to perform the Services in accordance with all applicable laws, rules, and regulations, or (d) any violation or claimed violation of a third party’s rights resulting in whole or in part from Company’s use of the work product of Contractor under this Agreement.

6.2 Intellectual Property Infringement.  In the event of any claim concerning the intellectual property rights of a third party that would prevent or limit Company’s use of the Inventions, Contractor will, in addition to its obligations under Section 6.1, take one of the following actions at its sole expense: (a) procure for Company the right to continue use of the Invention or infringing part thereof; or (b) modify or amend the Invention or infringing part thereof, or replace the Invention or infringing part thereof with another Invention having substantially the same or better capabilities.

7. INDEPENDENT CONTRACTOR; BENEFITS

7.1 Independent Contractor.  It is the express intention of the parties that Contractor perform the Services as an independent contractor.  Nothing in this Agreement will in any way be construed to constitute Contractor as an agent, employee, or representative of Company.  Without limiting the generality of the foregoing, Contractor is not authorized to bind Company to any liability or obligation or to represent that Contractor has any authority.  Contractor must furnish (or reimburse Company for) all tools and materials necessary to accomplish this contract, and will incur all expenses associated with performance, except as expressly provided for in Exhibit A.  Contractor is obligated to report as income all compensation received by Contractor under this Agreement, and to pay all self employment and other taxes thereon.

7.2 Benefits.  Contractor acknowledges that neither Contractor nor Contractor’s employees will receive benefits from Company either as a Contractor or employee.  If a Contractor employee is reclassified by a state or federal agency or court as an employee of Company, Contractor’s employee will become a reclassified employee and will receive no benefits except those mandated by state or federal law, even if by the terms of Company's benefit plans in effect at the time of the reclassification Contractor’s employee would otherwise be eligible for benefits.

8. MISCELLANEOUS

8.1 Services and Information Prior to Effective Date; Conversion to Employment.  All services performed by Contractor and all information and other materials disclosed between the parties prior to the Effective Date will be governed by the terms of this Agreement, except where the services are covered by a separate agreement between Contractor and Company.  In the event that the Contractor or any employee of the Contractor becomes an employee of the Company, the obligations of the Contractor in this Agreement shall continue with respect to such individual and the term of this Agreement shall continue through the termination of such employment. 

8.2 Nonassignment and No Subcontractors.  Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Contractor, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of Company.  Contractor may not utilize a subcontractor or other third party to perform its duties under this Agreement without the prior written consent of Company.  Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.  Any assignment in violation of the foregoing will be null and void.

8.3 Notices.  Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be:  (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address as set forth below.  Either party may change its address for notices by notice to the other party given in accordance with this Section.  Notices will be deemed given at the time of actual delivery in person, three business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.

8.4 Waiver.  Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed as a waiver of the party's rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice the party's right to take subsequent action.  Exercise or enforcement by either party of any right or remedy under this Agreement will not preclude the enforcement by the party of any other right or remedy under this Agreement or that the party is entitled by law to enforce.

8.5 Severability.  If any term, condition, or provision in this Agreement is found to be invalid, unlawful, or unenforceable to any extent, the parties will endeavor in good faith to agree to amendments that will preserve, as far as possible, the intentions expressed in this Agreement.  If the parties fail to agree on an amendment, the invalid term, condition, or provision will be severed from the remaining terms, conditions, and provisions of this Agreement, which will continue to be valid and enforceable to the fullest extent permitted by law.

8.6 Miscellaneous.  This Agreement may be executed in counterparts, each of which will be deemed to be an original and together will constitute one and the same agreement.   The internal laws of the HQ State, but not the choice of law rules, govern this Agreement.  Headings are used in this Agreement for reference only and will not be considered when interpreting this Agreement.  This Agreement and all exhibits contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter.  No terms, provisions, or conditions of any other business form that either party may use in connection with the transactions contemplated by this Agreement will have any effect on the rights, duties, or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of a receiving party to object to these terms or conditions.  This Agreement may be amended only by a writing signed by both parties.  Any claims arising out of or relating in any way to this Agreement must be resolved exclusively by a state or federal court located in the city of Salt Lake City, Utah, and Contractor agrees to submit to personal jurisdiction in any such court.