Affiliate Terms and Conditions

THE LANGUAGE EXPRESS, INC. (LEX)
REFERRAL AGREEMENT

All agreements are subject to management final approval. You will be notified by either phone or email if your application has been approved.

1. REFERRAL COMPENSATION

1.1 Referral Compensation. Affiliate’s sole compensation under this Agreement for acceptance of a referral by LEX will be the payment of a commission equal to 15% of the sale of software for the first year of purchase. Professional Development services will not be included in the commission. LEX reserves the right to modify commission rates from time to time at its discretion by providing Affiliate with 30 days written notice. However, commission changes only affect sales to referrals registered 30 days after the date of the notice provided by LEX.

1.2 Payment. Commissions will be due and payable no later than 30 days after the end of the month in which LEX receives payment from the referred customer. Payments will be subject to all applicable taxes.

2. TERM AND TERMINATION

2.1 Term. This Agreement will commence upon the Effective Date and continue for 12 months, unless earlier terminated in accordance with the provisions of this Agreement. This Agreement will automatically renew for additional successive 12-month terms unless at least 30 days before the end of the then-current term either party provides written notice to the other party that it does not want to renew.

2.2 Termination without Cause. Either party may terminate this Agreement without cause upon 90 days prior written notice to the other party.

2.3 Termination for Cause. If either party fails to perform any of its material obligations under this Agreement, the other party may terminate this Agreement by giving 10 days prior written notice, provided that the matters set forth in such notice are not cured to the other party’s reasonable satisfaction within the 10-day period.

2.4 No Liability for Termination. Except as expressly required by law, if either party terminates this Agreement in accordance with any of the provisions of this Agreement, neither party will be liable to the other, because of such termination, for expenditures or commitments made in connection with this Agreement or damages caused by the loss of prospective profits or anticipated sales. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.

2.5 Effects of Termination

Upon termination, LEX will only be responsible for paying a commission for referrals accepted prior to the effective date of the termination.

3. AFFILIATE’S OBLIGATIONS

3.1 Reasonable Efforts. Affiliate will use reasonable efforts to refer to LEX potential customers of the LEX Products. Affiliate will ensure that its representatives and agents are knowledgeable about the LEX Products.

3.2 Business Practices. When seeking customer referrals and otherwise performing under this Agreement, Affiliate will (a) not engage in any deceptive, misleading, illegal, or unethical practices; (b) not make any representations or warranties concerning the LEX Products, except as set forth in printed marketing collateral or documentation furnished by LEX; (c) conduct business in a manner that reflects favorably at all times on the good name, good will, and reputation of LEX; and (d) comply with all applicable federal, state, and local laws and regulations. Affiliate will indemnify and defend LEX from and against all damages, liabilities, costs, and expenses, including attorneys’ and experts’ fees and expenses, that LEX may incur as the result of any action brought against LEX and arising out of the acts of Affiliate or its agents in breach of this Section 3.2.

3.3 Internal Promotion. Affiliate will inform and educate its personal network about the nature of the business relationship between the parties and LEX’s products and services.

3.4 Expense of Doing Business. Affiliate will bear the entire cost, taxes, and expense of conducting its business in accordance with the terms of this Agreement.

3.5 Competing Products. Affiliate will not refer any prospective customers to a licensor or supplier of products that provides functionality that competes with or is similar to the functionality of the LEX Products, except if the prospective customer expressly rejects Affiliate’s referral to LEX.

4. LEX OBLIGATIONS

4.1 Use of LEX’s Trade Name. Affiliate may identify LEX as the supplier of the LEX Products in Affiliate’s materials so long as LEX approves such materials in writing in advance.

4.2 Marketing Materials. LEX will, at its own expense and discretion, provide Affiliate with marketing and technical information concerning the LEX Products as well as reasonable quantities of brochures, instructional material, advertising literature, and other product data. LEX retains all right, title, and interest in and to all marketing materials that it provides to Affiliate under this Agreement. Any goodwill in LEX’s trademarks resulting from Affiliate’s use of LEX’s marketing materials inures solely to the benefit of LEX and will not create any right, title, or interest for Affiliate in LEX’s trademarks.

4.3 Sales Training. LEX, at its discretion, will provide Affiliate’s sales organization with sales training that includes: (a) a demonstration of the LEX Products, (b) a summary of market and competitive positioning, (c) a discussion of the key features, benefits, and value to end customers of the LEX Products, (d) marketing materials, and (e) any other beneficial information. LEX and Affiliate will agree on the payment of any fees and expenses associated with any sales training.

4.4 Sales and Business Development Support. LEX, at its discretion, will provide Affiliate with the services of sales personnel, designated technical personnel, and designated account managers who are experienced and qualified to assist in providing marketing support for its products and services.

5. REFERRAL PROCESS

5.1 Referral Submission. When Affiliate identifies a prospective customer, Affiliate will email referral to LEX’s Account Manager in order to register Affiliate’s presence within the account. The email will include accurate and complete information regarding the prospective customer, including, at a minimum, name, address, city, state, zip, phone, and title at School or School District.

5.2 Acceptance of Referrals. Upon registration of a referral, LEX will have 15 business days to accept or reject the referral. A referral may be rejected for any reason, including, but not limited to, because the referral is not qualified, contact with LEX has already been established with the referral, or the referral is an existing customer.

6. APPOINTMENT

6.1 Appointment. Subject to the terms of this Agreement, LEX hereby appoints Affiliate as a nonexclusive representative in the geographic territory assigned by LEX to solicit and refer potential customers for the LEX products and services identified as The Social Express and Cool School. Affiliate will not have the authority, express or implied, to make any commitment or incur any obligations on behalf of LEX other than making referrals as set forth in this Agreement.

7. AFFILIATE INDEMNIFICATION

7.1 Defense of Claims. Affiliate will defend LEX and its affiliates and their employees, directors, agents, and representatives (“LEX Indemnified Parties”) from any actual or threatened third party claim arising out of Affiliate’s breach of this Agreement or based upon Affiliate’s negligence or willful misconduct if: (a) the applicable LEX Indemnified Party gives Affiliate prompt written notice of the claim; (b) Affiliate has full and complete control over the defense and settlement of the claim; (c) the applicable LEX Indemnified Party provides assistance in connection with the defense and settlement of the claim as Affiliate may reasonably request; and (d) the applicable LEX Indemnified Party complies with any settlement or court order made in connection with the claim (e.g., relating to the future use of any infringing materials).

7.2 Indemnification. Affiliate will indemnify each of the LEX Indemnified Parties against (a) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 8.1; (b) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Affiliate’s consent after Affiliate has accepted defense of such claim); and, (c) if any proceeding arising under Section 8.1 is settled, Affiliate will pay any amounts to any third party agreed to by Affiliate in settlement of any such claims.

8. CONFIDENTIAL INFORMATION

8.1 Definition. “Confidential Information” means any proprietary information of a party to this Agreement disclosed by one party to the other that is in written, graphic, machine readable, or other tangible form and is marked “Confidential” or “Proprietary” or in some other manner to indicate its confidential nature. Confidential Information may also include oral disclosures provided that such information is designated as confidential at the time of disclosure and reduced to a written summary by the disclosing party within 30 days after its oral disclosure, which is marked in a manner to indicate its confidential nature and delivered to the receiving party.

8.2 Exceptions. Confidential Information will not include any information that (a) was publicly known and made generally available prior to the time of disclosure by the disclosing party, (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party, (c) is already in the possession of the receiving party at the time of disclosure, (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality, or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

8.3 Non-Use and Non-Disclosure. Each party will (a) treat as confidential all Confidential Information of the other party, (b) not disclose such Confidential Information to any third party, except on a “need to know” basis to third parties that have signed a non-disclosure agreement containing provisions substantially as protective as the terms of this Section provided that the disclosing party has obtained the written consent to such disclosure from the other party, and (c) will not use such Confidential Information except in connection with performing its obligations or exercising its rights under this Agreement. Each party is permitted to disclose the other party’s Confidential Information if required by law so long as the other party is given prompt written notice of such requirement prior to disclosure and assistance in obtaining an order protecting such information from public disclosure.

8.4 Confidentiality of Agreement. Neither party to this Agreement will disclose the terms of this Agreement to any third party without the consent of the other party, except as required by securities or other applicable laws. Notwithstanding the above provisions, each party may disclose the terms of this Agreement (a) in connection with the requirements of a public offering or securities filing, (b) in confidence, to accountants, banks, and financing sources and their advisors, (c) in confidence, in connection with the enforcement of this Agreement or rights under this Agreement, or (d) in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.

9. LIMITATION OF LIABILITY

9.1 Disclaimer of Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, LEX WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO AFFILIATE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF LEX IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.

9.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL LEX’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY LEX TO AFFILIATE UNDER THIS AGREEMENT (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).

9.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE COMMISSION OFFERED BY LEX TO AFFILIATE AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

10. GENERAL

10.1 Independent Contractors. The relationship of the parties established by this Agreement is that of independent contractors, and nothing contained in this Agreement should be construed to give either party the power to (a) act as an agent or (b) direct or control the day-to-day activities of the other. Financial and other obligations associated with each party’s business are the sole responsibility of that party.

10.2 Non-Assignability and Binding Effect. Neither party will assign its rights and obligations under this Agreement without the written consent of the other party, except to a successor to its business( including a successor by way of merger, acquisition, sale of all or substantially all of its assets, or operation of law). Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns.

10.3 Notices. Any notice required or permitted to be given under this Agreement will be effective if it is in writing and sent by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address set forth below and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.

10.4 Force Majeure. Nonperformance of either party will be excused to the extent that performance is rendered impossible by strike, fire, flood, governmental acts, orders or restrictions, or any other reason where failure to perform is beyond the control and not caused by the negligence of the non-performing party.

10.5 Governing Law and Litigation. This Agreement is governed by the laws of the State of California, without giving effect to provisions related to choice of laws or conflict of laws. The application of the United Nations Convention on the Sale of Goods is not applicable and expressly disclaimed by the parties. Venue and jurisdiction of any lawsuit involving this Agreement exists exclusively in the state and federal courts in San Diego, California, unless either party seeks injunctive relief that, in that party’s reasonable and good faith judgment, would not be effective unless obtained in some other venue. The prevailing party in any lawsuit arising from or relating to this Agreement is entitled to recover its costs, including reasonable attorney fees.

10.6 Remedies Cumulative. The remedies provided to the parties under this Agreement are cumulative and will not exclude any other remedies to which a party may be lawfully entitled.

10.7 Waiver and Severability. The waiver by either party of any breach of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation under this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement. If any part of this Agreement is unenforceable, the remaining portions of this Agreement will remain in full force and effect.

10.8 Entire Agreement. This Agreement is the final and complete expression of all agreements between these parties and supersedes all previous oral and written agreements regarding these matters. It may be changed only by a written agreement signed by the party against whom enforcement is sought. The exhibits referred to in this Agreement are incorporated by this reference as if fully set forth here.

10.9 Execution in Counterparts and by Facsimile. The Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute but one and the same instrument. The Agreement may be executed and delivered by facsimile and the parties agree that such facsimile execution and delivery will have the same force and effect as delivery of an original document with original signatures, and that each party may use such facsimile signatures as evidence of the execution and delivery of this Agreement by all parties to the same extent that an original signature could be used.