This OOMPH Referral Agreement was last updated on April 18, 2019.
This OOMPH Referral Agreement (the "Agreement") is an agreement between OOMPH Fitness Inc. (“OOMPH”) and the Authorized Referring Fitness Partner (the “Referrer”) and is entered into the date the Referrer agrees to be bound by this Agreement (the "Effective Date").
OOMPH carries on the business of providing a mobile kickboxing application called OOMPH with the associated web services (“OOMPH Services”). Referrer will be referring their Fitness Partners and Social Media Followers (“Referrer’s Followers”) to the OOMPH App. The parties wish to set out the Terms and Conditions of this Agreement for Referrer to refer the OOMPH App to the Referrer’s Followers.
In this agreement:
“Excluded Accounts” means all Subscribers to the Service prior to the commencement of the Agreement and all Referrals of Referrer Followers that were OOMPH Customers prior to the referral.
“Referrer’s Referrer Code” means the unique Referrer Code exclusively issued to the Referrer by OOMPH.
“Referrer's Customers” means End-users which have a customer relationship with Referrer and include Fitness Partners and Social Media Followers of the Referrer.
“Registered Referrals” are Referrals received by OOMPH with the Referrer’s Referrer Code that are not Excluded Accounts. OOMPH reserves the sole right to determine if the Referral is accepted and qualifies for Compensation.
“OOMPH Service” means the mobile based kickboxing application called OOMPH as described and defined in the Terms of Service which may change from time to time.
“Terms of Service” means the Terms of Service Agreement applicable to the Service as posted by OOMPH on the www.OOMPH.app website.
“Term” means the term of this agreement.
Capitalized terms have the same meaning as in the Terms of Services unless otherwise defined in this agreement.
OOMPH hereby appoints Referrer, and Referrer accepts appointment, as a non-exclusive sales Referrer for the OOMPH Services to Referrer’s Followers during the Term, and subject to the Terms and Conditions of this agreement.
Excluded from the appointment are all Subscribers to the OOMPH Service prior to the commencement of the Term and all Referrals of Referrer Followers that were OOMPH Customers prior to the referral (Excluded Accounts).
- Amount. Referrer will earn a Referral Fee of $10 US for each Registered Referral that has subscribed to the OOMPH Service for three months during the Term of this Agreement.
- Payment: OOMPH will pay the Referrer their Referral Fee due on a monthly
Basis. All Referral Fees shall be paid through PayPal to the Referrer’s PayPal account on the 15th day of the month following the month that the Referral Fee was earned.
OOMPH will grant Referrer the non-exclusive right to market and refer the OOMPH Service to Referrer’s Followers during the Term of this Agreement.
- Obligations and Responsibility of Referrer
Marketing and Sales Efforts.
Referrer will use its diligent and faithful best efforts to market and promote the sale of the OOMPH Service to Referrer’s Followers.
Referrer agrees to participate in the development of sales and promotion plans by OOMPH for the Service and for such purposes to meet with OOMPH as requested by OOMPH from time to time. Referrer will participate in any promotional campaigns developed by OOMPH.
iii) Referrer gives permission to OOMPH to repost their Instagram and other social media content.
Marketing and Promotion Materials. Referrer will submit all marketing and sales information, brochures and advertisements (“marketing and sales materials”) for approval by OOMPH prior to production or use, and will not produce, use or distribute any unapproved marketing and sales materials. OOMPH may approve or disapprove of any marketing and sales materials. In addition, OOMPH may supply or direct Referrer to acquire, and Referrer will use such marketing and sales information, brochures and advertisements as OOMPH may determine from time to time.
Sales Practices and Procedures.
All Referrals will be at the prices and on payment terms established by OOMPH for the relevant Service and in accordance with the Terms of Services, and Referrer will not offer discounts or extended terms except as pre-approved by OOMPH in writing.
Referrer shall not make any representations, warranties or claims respecting the Service other than those authorized by or made by OOMPH in written form or as set forth in the Terms of Services.
Referrer agrees to conduct its business in accordance with applicable laws and regulations and in all respects operate in a fair, ethical and lawful manner. Referrer agrees not to engage in business practices which may reflect adversely upon the public image of OOMPH, its products and the goodwill related thereto.
Support Practices and Procedures.
Referrer will agree to the Terms and Privacy Statement as defined at the web-site www.oomph.app.
- Term and Termination
Commencement. This Agreement shall commence on the Effective Date and expire one year thereafter (“Initial Term”). Upon expiration on the Initial Term, this Agreement will automatically renew for an additional year (“Renewal Term”) unless either party provides the other written notice of its intent not to renew at least ninety (90) days prior to the expiration of the then current Term. The Initial Term and Renewal Terms shall be collectively referred to herein as the “Term”.
Once the Initial Term begins, this Agreement may be terminated by either party at the end of any then-current term by providing written notice of non-renewal to the other party at least ninety (90) days prior to the end of the then-current term. In addition, this Agreement may be terminated by either party in the event that a material breach of any of the terms and conditions of this Agreement by the other party continues in effect after the defaulting party has been provided with written notice of the default and thirty (30) days to cure such default shall have passed.
OOMPH may terminate this agreement at any time and without notice in the event of a material breach of any provision of this agreement by Referrer; or if Referrer becomes insolvent, has a receiver appointed or takes protection under any bankruptcy or insolvency statute or rule of law; or if control of Referrer changes.
Provisions on Termination. The following terms apply on termination:
Referrer shall deliver to OOMPH all marketing and promotional materials that are specifically related to the Service; shall remove all references to OOMPH and the Service from any other materials it retains; and shall cease all references to any association with OOMPH.
Termination of this agreement means termination of the appointment of Referrer and terms related to the conduct of business and the parties arising from the appointment, and not to any other terms.
All amounts due to Referrer, pursuant to Compensation as defined in Section 2, as of the date of Termination will be paid to Referrer within 30 days of Termination. No Compensation will be earned or paid from Subscription Charges received after Termination.
The parties agree that no press release, acknowledgement or other information concerning this Agreement and the Services provided hereunder will be made public by either party without the prior written agreement of the other.
- Proprietary Rights
Ownership of Property.
All products, programs, concepts and ideas developed by Referrer in connection with the Service and the performance of its services and obligations under this agreement shall become and remain the sole property of OOMPH. Copyright in all marketing and sales materials shall be the exclusive property of OOMPH from the date of creation. Referrer agrees for itself, and each of its officers, directors, employees and representatives, to cause all necessary assignments and releases to be executed and delivered to give effect thereto and to supply OOMPH with all original artwork, computer files, products and authorizations required or necessary to ensure that OOMPH gains possession thereof.
All trade-marks, trade names, internet domain names, and distinguishing guises of OOMPH shall be and remain the sole property of OOMPH, and shall be so identified by Referrer wherever used by Referrer. Referrer acknowledges and agrees for itself, and each of its officers, directors, employees and representatives, not to challenge OOMPH’s claims therein or infringe any of them.
All information contained in any report required to be provided by Referrer to OOMPH shall become the property of OOMPH.
For the purposes of this agreement confidential information includes, but is not limited to, all information supplied or required to be supplied by Referrer under this agreement; and all information concerning OOMPH’s business, its products and services, including the Service and the sale of the Service, otherwise learned or acquired by Referrer from the commencement of its discussions with OOMPH concerning this agreement, and during the Term, including and not limited to product plans, market plans, prices, suppliers, customers, processes, procedures, personnel, policies, and technologies. Excluded from confidential information is any information in the public domain other than through breach of this agreement or disclosure by Referrer and its officers, directors, employees and representatives.
Referrer acknowledges and agrees for itself, and each of its officers, directors, employees and representatives, that all confidential information is the property of and proprietary to OOMPH; and to keep all confidential information in confidence and not to disclose it without the specific authorization of OOMPH; and to use such confidential information only for the benefit of OOMPH. This restriction applies during the Term and after its expiration, without limitation as to time.
- General Contract Matters
Independent Contractors. Referrer and OOMPH are, and at all times shall remain, independent contractors, and nothing shall be deemed or construed to constitute the parties as partners, employees, joint ventures, or principal and agent. Except as specifically permitted by this agreement, Referrer shall have no authority to, and shall not, impose any obligation on or otherwise bind OOMPH in any way whatsoever.
Mutual Indemnification. Referrer agrees to indemnify and hold harmless OOMPH from and against any claim, liability, cost, damage, loss or expense that may result from any breach of any provision of this agreement by; the unauthorized acts, representations or contracts by; or any claim by any person that arises out of the acts or omissions of; Referrer or any persons for whom it is responsible in law or under this agreement. OOMPH agrees to indemnify and hold harmless Referrer and each of its officers, directors, employees and representatives, from and against any claim, liability, cost, damage, loss or expense that may result from any breach of any provision of this agreement by OOMPH or any persons for whom it is responsible.
Notices. Any notice pursuant to this agreement shall be in writing. Notice shall be given to the parties at the address set forth on the face of this agreement, or such other address or fax number as a party may from time to time advise. Notice may be given by hand delivery, in which case it shall be deemed received at the time of delivery; or by fax transmission, in which case it shall be deemed received at the time of transmission provided a confirmation of transmission is obtained; or by registered or certified mail at the time when there is no postal disruption in either the sending or receiving jurisdiction, in which case it shall be deemed received three (3) weekdays after posting; or by hand delivery to an officer or director of a party; or in any other manner permitted for the service of court documents.
Entire Agreement. This is the entire agreement between the parties as to its subject matter, and there are no representations, warranties, covenants, terms or conditions except as herein contained in writing, and no collateral agreements. This Agreement may be Amended by OOMPH from time to time and will be posted at the website www.oomph.app.
Enurement and Non-Assignment. This agreement is not assignable by either party without the written consent of the other. This agreement enures to the benefit of and is binding upon the parties and their