Flare Referral Program Agreement

This Flare ReferralProgram Agreement (this "Agreement") governs any entityor individual that submits to participation in the Flare Referral Program (the“Referral Program”) operated by Wayward LLC, a Delaware limitedliability company ("Wayward"). Capitalized terms not definedherein shall have the meaning ascribed to them in the Terms.
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RECITALS‍

A) Wayward and Brand Partner are parties to that certain WaywardBrand Partner Terms and Conditions located at https://www.wayward.com/brand-terms(the "Terms"). The Terms are incorporated by this reference.
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B) Brand Partner wishes to engage Wayward and Creators topromote its Products listed on Amazon.com and other online marketplaces through the Referral Program.
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In consideration of the mutualcovenants and agreements hereinafter set forth and for other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged, Waywardand Brand Partner agree as follows:

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Brand Partner wishes to engage Wayward and Creators to promote its Products listed on Amazon.com and other online marketplaces through the Referral Program.

In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Wayward and Brand Partner agree as follows:


TERMS

  1. Description of Service. Wayward will use commercially reasonable efforts to facilitate  the promotion of Brand Partner’s Products by Creators on Creator Sites and third party websites, blogs, e-mail, social media channels, or any other medium (the “Referral Platforms”). Creators who wish to participate in the Referral Program will transact with Wayward through the Wayward Creator Portal at wayward.com/creators. For each Creator, Wayward will create graphic and textual attribution links to one or more of Brand Partner’s Products listed on Amazon.com and other online marketplaces (the “Qualifying Links”). The Qualifying Links will serve to identify Brand Partner and each Creator as part of the Referral Program. Creators will promote Brand Partner’s Products by displaying the Qualifying Links. Brand Partner authorizes each Creator to display the Qualifying Links as often and as in as many Referral Platforms as such Creator determines along with such content that each Creator may create relating to Brand Partner’s Products. Brand Partner will grant Wayward access to Brand Partner’s Amazon Attribution API and Amazon Ad Account for Wayward to track and optimize Referral Program campaigns, total Product sales, sales performance, and other data related to the Referral Program.  Brand Partner will notify Wayward by email at brands@wayward.com of the following with respect to the Referral Program and such action will be effective within 72 hours of Wayward’s receipt of such email notification (provided that a change in Tier will not be applicable until the calendar month following the month in which Wayward is notified of a change): (i) the use of a new Creator, (ii) termination of an existing Creator, (iii) addition of any Product for use with Qualifying Links, (iv) removal of any Product from the Referral Program, (v) the applicable Commission (subject to Wayward’s approval), and (vi) the Tier. 
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  2. Fees; Payment Terms. Brand Partner agrees to pay the following fees to Wayward (collectively, the “Fees”): (i) a monthly subscription fee (prorated for any partial month) during the term of this Agreement (the “Subscription Fee”), (ii) a usage fee equal to a percentage of the GMV of Products sold through Qualifying Links (the “Usage Fee”), and (iii) a commission fee equal to a percentage of the GMV of Products sold through Qualifying Links, as agreed to from time to time between Wayward and Creator by email, provided, such commission will in no event be less than 10% of the GMV of Products sold through Qualifying Links (the “Commission”). The applicable Fees depend upon the Tier that Brand Partner designates during online registration (as may be changed from time to time as set forth in Section 1), in accordance with the following scale (each of 1 – 5 in the leftmost column being a “Tier”):
  3. Tier 1:
  4. Usage Fee (as a percentage of GMV): 6%
  5. Subscription Fee: $30
  6. Minimum Commission (as a percentage of GMV): 15%
  7. Tier 2:
  8. Usage Fee (as a percentage of GMV): 4.5%
  9. Subscription Fee: $150
  10. Minimum Commission (as a percentage of GMV): 10%
  11. Tier 3:
  12. Usage Fee (as a percentage of GMV): 3%
  13. Subscription Fee: $500
  14. Minimum Commission (as a percentage of GMV): 10%
  15. Tier 4:
  16. Usage Fee (as a percentage of GMV): 2.5%
  17. Subscription Fee: $750
  18. Minimum Commission (as a percentage of GMV): 10%
  19. Tier 5:
  20. Usage Fee (as a percentage of GMV): 2%
  21. Subscription Fee: $1,000
  22. Minimum Commission (as a percentage of GMV): 10%
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  23. All Fees will be calculated based upon Wayward’s reporting of Brand Partner’s Product sales through the Amazon Associates Program (the “Reporting”).  Upon request, Wayward will provide Brand Partner with the Reporting. Brand Partner will be invoiced by Wayward upon completion of each calendar month. Brand Partner’s payment terms are net 15 days from the date of invoice. In addition to any other rights, Wayward and Creators may immediately remove Qualifying Links in the event of non-payment by Brand Partner within such time period. All sums payable by Brand Partner to Wayward under this Agreement are exclusive of any sales tax, indirect or similar taxes chargeable on any supply to which those sums relate. Brand Partner authorizes Wayward to remit payment of the Commission to each Creator.
  1. Intellectual Property License. By participating in the Referral Program, Brand Partner hereby grants Wayward and its affiliates, service providers, and promotional partners (including without limitation, each Creator and Referral Platform), a non-exclusive, royalty-free, perpetual, sublicensable, irrevocable right and license: (i) to use, publish, reproduce, display, distribute, transmit and otherwise exploit Brand Partner Marks; and (ii) to use, publish and perform, reproduce, distribute, transmit, display, modify, create derivative works of, and otherwise commercially exploit all Product Information, in each case of (i) and (ii) in connection with the Referral Program (including without limitation advertising, marketing, and promoting the Products on Referral Platforms). 
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  2. Disclaimers. THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WAYWARD MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE. NEITHER PARTY SHALL BE LIABLE FOR ANY PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, COSTS OR EXPENSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, BUSINESS INTERRUPTION, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, LOSS, COST OR EXPENSE. WAYWARD’S TOTAL LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS BRAND PARTNER HAS PAID TO WAYWARD UNDER THIS AGREEMENT IN THE TWELVE MONTHS PRIOR TO THE DATE THE CLAIM ACCRUED.

CREATORS ARE NOT PARTNERS, REPRESENTATIVES, AGENTS OR EMPLOYEES OF WAYWARD. WAYWARD IS NOT RESPONSIBLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, CONDITIONS, BREACHES OR NEGLIGENCE OF ANY OTHER ENTITY (INCLUDING CREATORS) AND SHALL HAVE NO LIABILITY FOR THE PRECEDING.

  1. Brand Partner may terminate this Agreement without cause on thirty (30) days’ notice to Wayward. Wayward may terminate this Agreement without cause upon notice to Brand Partner.  Upon termination of this Agreement, Brand Partner will pay Wayward the aggregate Fees through the effective date of termination.
  1. This Agreement supplements and is part of the Terms. To the extent that any of the terms or conditions contained in this Agreement conflicts with the Terms, the Terms shall control. Wayward reserves the right to make changes to the Terms and this Agreement at any time, and such changes will be effective immediately upon either being provided to Brand Partner via email or such other method Wayward selects (including being posted by Wayward on the Wayward Brand Portal at wayward.com/brands).
  1. This Agreement may be executed in counterparts (including electronic PDF transmissions of such signatures), each of which shall be deemed an original and all of which shall constitute one and the same instrument.
  1. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.