Palm Beach Tan Ambassador Agreement

This Palm Beach Tan Ambassador Agreement (the “Agreement”) sets forth the complete terms and conditions that apply to a party’s participation in the Ambassador Program (the “Program”) of Palm Beach Tan, Inc., a Texas incorporated company (“Palm Beach Tan”). As used in this Agreement, the terms “we” and “Merchant” mean Palm Beach Tan, and the terms “you” and “Partner” mean the applicant party (each referred to herein as a “Party” and collectively as the “Parties”).

Background

1. Partner owns and operates certain social media accounts, including Facebook, Instagram and TikTok (“Partner Accounts”).
2. Merchant provides and promotes certain services and products via the internet through a website owned and operated by Merchant currently located at www.palmbeachtan.com (the “Merchant Site”).
3. Partner and Merchant desire to enter into a strategic affiliate relationship to promote Merchant services, products and website to followers of the Partner Accounts (the “Partner Followers”) in accordance with the terms and conditions of this Agreement and in exchange for the consideration recited herein.

Enrollment

To begin the enrollment process, you must submit a completed Program application here. We will evaluate your application and promptly notify you of your acceptance. We will not notify you if you are not selected. We may reject your application if we determine, in our sole discretion, that Partner Accounts are not suitable for the Program for any reason, including but not limited to inclusion of content that is in any way unlawful, harmful, threatening, defamatory, obscene, harassing or racially, ethnically or otherwise objectionable. Unsuitable Partner Accounts include, without limitation, accounts that contain or link to (i) sexually explicit, pornographic or obscene content (whether in text or graphics), (ii) speech or images that are offensive, profane, hateful, threatening, defamatory, libelous, harassing or discriminatory (whether based on race, ethnicity, creed, religion, gender, sexual orientation, physical disability or otherwise), (iii) graphic violence (which may include certain types of game accounts), (iv) content related to liquor, tobacco, firearms, drugs, gambling, crime or death, (v) politically sensitive or controversial issues (e.g., abortion, capital punishment) or other political content (e.g., lobbyists, political campaigns) or (vi) any unlawful behavior or conduct, including materials that infringe our intellectual property rights or those of any third party. If we reject your application, you may reapply to the Program when invited to do so. However, we may, at our discretion, permanently bar you from participation in the Program if your Accounts are inconsistent with our objectives or the operation of our Program. If we do so, we will not inform you of our decision. In addition, employees of Palm Beach Tan, Inc., its franchisees, affiliate brands, vendors, suppliers or partners are not eligible for participation in the Ambassador program.

Terms and Conditions

1. Offers and Engagements

   1. From time to time, Merchant may send emails through Social Ladder inviting Partners to participate in campaigns promoting Merchant’s services and products (“Invitation”) in exchange for specified rewards (defined below).
   2. If an Invitation made by one party is accepted by the other party in accordance with the Invitation’s terms via Social Ladder, an “Engagement” will have been formed. Each Engagement will have the same campaign name as the original Invitation that led to the Engagement and will be governed by the terms and conditions of this Agreement. However, in the event of any inconsistency between the terms of the Engagement and the terms of this Agreement, the terms of the Engagement will govern.
   3. At any time before Merchant sends an Invitation, Merchant may, with or without notice, (a) change, suspend, revoke or discontinue any aspect of an Invitation or Engagement or this Agreement or (b) remove, alter or modify any graphic or image submitted by Merchant for an Invitation or Engagement. Partner must promptly comply with any request from Merchant to remove, alter or modify any graphic or image submitted by Merchant that is being used by Partner as part of an Engagement.

2. Partner’s Responsibilities

   1. For the purposes of this Agreement, an “Invitation” will be defined as an email sent from Merchant to Partner inviting Partner to participate in a specified marketing campaign. Partner may accept or decline such Invitation. If Partner declines an Invitation, Partner will be permanently removed from Program and will no longer receive such Invitations. If Partner accepts an Invitation, Partner will comply with specific marketing campaign objectives and complete campaign requirements according to the specified campaign timeline. By accepting the Invitation, the Partner gives the Merchant permission to use the Partner’s posts in creative promotional materials for the Merchant - including but not limited to: e-newsletters, emails, sweepstakes and social media campaigns. To the extent Partner cannot comply, Partner must notify Merchant and provide reasoning within 10 business days of Partner's receipt of Invitation. Partner must comply with minimum post frequency, but may post to Partner Accounts as many times as desired during each marketing campaign. The position, prominence and nature of the posts on Partner Accounts must comply with any requirements specified in the Engagement, but otherwise will be in the discretion of Partner. All content guidelines and requirements that Partner needs in the Program will be provided to Partner through the Social Ladder emails.
   2. Partner responsibilities (“Partner Responsibilities”) will include posting to Partner Accounts according to individual Engagement requirements; posting about Merchant and tagging Merchant Accounts one (1) to three (3) times per month; testing Merchant’s new products and providing feedback; wearing Merchant-branded items; and adding indication of Program enrollment to Instagram profile. In addition, Partner must keep Instagram profile set to “Public” and keep PBT-branded stories archived in a “story highlight” on Partner’s page throughout the duration of the Ambassador Program.
   3. Each monthly Partner assignment may have different requirements, and are subject to change month by month. Partner responsibilities will include specifics of each monthly assignment, and each monthly Partner assignment must remain on the Partner’s social channels for the duration of the Ambassador Program.
   4. Partner may not make any representations, warranties or other statements concerning Merchant, the Merchant Site, any of Merchant’s products or services, or the Merchant Site policies, except as expressly authorized under the terms of the Engagement.
   5. Partner may not promote or post content for competitor brands including but not limited to: St. Tropez, Isle of Paradise, St. Moriz, Bondi Sands, Coco & Eve, Tan Luxe, Coola, Tanologist, Loving Tan, Bronze Cactus and Tan Again.
   6. Partner is responsible for notifying Merchant of any problems with Partner’s participation in the Engagement and/or Program. Merchant will respond promptly to all concerns upon notification by Partner.

3. Rewards

   1. Merchant will provide Partner with the rewards (the “Rewards”) specified in the Program if Partner complies with and completes Engagement and Program requirements. The Rewards include ongoing free Diamond sunbed or sunless access as long as Partner responsibilities are fulfilled, special deals for Partner to share with Partner Followers, opportunities to be featured on Merchant’s social media accounts and PBT, early access to new products, opportunities to be featured on Merchant-branded materials and free retail items from Merchant. The Rewards will not include any refunds, chargebacks, bad debt, taxes, or shipping and handling costs. In no event will Partner receive any compensation for purchases made through Merchant that do not originate directly (in each instance) through an Engagement or the Program. In no event will Partner receive any compensation for purchases made from Merchant that are rejected by Merchant for reasons including, without limitation, fraud, cancellation or noncompliance with any reasonable requirements established by Merchant as a condition of sale.
   2. Merchant will have the sole right and responsibility to process all purchases made by Customers. Partner acknowledges that all agreements relating to sales to and memberships of Customers will be between Merchant and the applicable Customer.
   3. All determinations of Engagements and whether Rewards were earned will be proven by Social Ladder data and will be final and binding on both Merchant and Partner. Rewards in addition to those set forth in Section 3.1 will be provided by Merchant in its sole discretion.

4. Ownership and Licenses

   1. Each party owns and will retain all rights, title and interest in its names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology, including, without limitation, those names, logos, trademarks, service marks, trade dress, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future.
   2. Merchant grants Partner a revocable, nonexclusive, worldwide license to use, reproduce and transmit Merchant’s names, logos, trademarks, service marks, trade dress and proprietary technology (the “Merchant Intellectual Property”) as designated in the Engagement or during the enrollment process in the Program, on the Partner Accounts, solely for the purpose of completing Engagement and Program requirements. Except as expressly set forth in this Agreement or permitted by applicable law, Partner may not copy, distribute, modify, reverse engineer or create derivative works from the Merchant Intellectual Property. Partner may not sublicense, assign or transfer any such licenses, and any attempt at such sublicense, assignment or transfer is void.
   3. Upon Merchant’s request, Partner must immediately remove from the Partner Accounts any content that is posted to Partner Accounts that Merchant, in its sole discretion, deems objectionable.
   4. Partner may not use the palmbeachtan.com or Palm Beach Tan, Inc. names or any variation thereof in any manner not expressly authorized under this Agreement, including, without limitation, the following: Partner may not post palmbeachtan.com sales or promotions on the Partner site without Merchant’s prior written consent; Partner may not use the palmbeachtan.com or Palm Beach Tan USA names or trademarks or any variation thereof, including, without limitation, names that are misspellings of the Palm Beach Tan name in posts to Partner Accounts; Partner may not engineer posts to Partner Accounts in a manner that pulls social traffic away from Merchant Accounts; Partner may not name Partner Accounts using words, terms or phrases that are likely to cause confusion regarding their affiliation with palmbeachtan.com or Palm Beach Tan, Inc. Some examples of these keywords include but are not limited to: Palm Beach Tan; palmbeachtan.com; PBTOfficial; Palm Beach Tanning; Palm Beach Tan lotion; Palm Beach Tan salon. Violation of any of the foregoing prohibitions may result in, among other things, the immediate termination of this Agreement and the commencement of an action by Merchant against Partner seeking, without limitation, injunctive relief and/or recovery of actual, statutory and punitive damages.

5. Termination

   1. Either Party may terminate any Engagement at any time by revoking its acceptance of the Engagement by notifying the other Party. Termination of an Engagement will not terminate this Agreement or any other Engagement.
   2. Either Party may terminate this Agreement at any time, for any reason, provided that, except as set forth in Section 4.4 of this Agreement, such Party provides at least five (5) days’ prior written notice of such termination to the other Party. Termination of this Agreement will also terminate any outstanding Engagements.

6. Representations

   1. Each Party represents to the other that (a) it has the authority to enter into this Agreement and sufficient rights to grant any licenses hereby, and (b) any material that is provided to the other Party and displayed on the other Party’s Accounts will not (i) infringe on any third-party copyright, patent, trademark, trade secret or other proprietary rights or right of publicity or privacy; (ii) violate any applicable law, statute, ordinance or regulation; (iii) be defamatory or libelous; (iv) be lewd, pornographic or obscene; (v) violate any laws regarding unfair competition, antidiscrimination or false advertising; (vi) promote violence or contain hate speech; or (vii) contain viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines.
   2. EXCEPT FOR THE ABOVE REPRESENTATIONS, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER PARTY, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

7. Cross-Identification

   1. Each Party agrees to indemnify, defend and hold harmless the other Party and its affiliates, directors, officers, employees and agents from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorneys’ fees) brought by a third party arising out of a breach, or alleged breach, of any of its representations or obligations herein.

8. Limitation of Liability

   1. In no event will either Party be liable to the other Party for any direct, indirect, special, exemplary, consequential or incidental damages arising from or in connection with this Agreement, even if informed of the possibility of such damages. In no event will the aggregate liability of Merchant to Partner under this Agreement exceed the total undisputed Rewards due and owing Partner hereunder.

9. General

   1. Each Party will act as authority to obligate or bind the other in any respect.
   2. This Agreement has been made in and will be construed and enforced in accordance with the laws of the state of Texas. Any action to enforce this Agreement will be brought in the federal or state courts located in that state. Official correspondence must be sent to Merchant via registered mail to Merchant’s headquarters, to the attention of Merchant’s legal department.
   3. This Agreement may be agreed to in more than one counterpart, each of which together will form one and the same instrument. The Parties agree that execution may be achieved in any format convenient to the Parties.
   4. The provisions of this Agreement are independent of and separable from each other, and no provision will be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.