Seller Affiliate Referral Program Agreement

Amendment Effective Date: March 26, 2023

Original Effective Date: August 1, 2022

This Affiliate Referral Program Agreement (this “Agreement”) contains the complete terms and conditions that apply to your participation in Rivly’s Affiliate Referral Program for services offered by Rivly (the “Services”). As used in this Agreement, “we,” “us” or “Rivly” means Rivly, Inc., a Delaware corporation, and “you,” “your” or “Affiliate,” means you as the affiliate participating in this Affiliate Referral Program. “Affiliate Site” individually and collectively means your website and/or e-mail communications and/or software applications. “Affiliate Referral Program” means the program we manage and control by which participating Affiliates place links on their Affiliate Site that connect to Rivly’s website (https://rivly.com/) and for which a Commission (as defined below) can be earned for Qualified Referrals (as defined below). The Affiliate Referral Program is only available to eligible Sellers who signed up for the Affiliate Referral Program prior to Rivly’s public launch.

1. Participation

a. You must sign up for an account to join the Rivly Affiliate Referral Program. In signing up for an account, you are agreeing to be bound by Rivly’s standard Terms of Service and Privacy Policy. Once registered, and we have approved your enrollment, you become a participant in the Affiliate Referral Program. Current and former Rivly contractors, employees, and members of Rivly employees’ immediate family are prohibited from participation in the Affiliate Referral Program.

b. We use PayPal to remit Commissions to our affiliates. In order for us to pay you your Commissions, you must have a PayPal account linked to the e-mail address you used when registering for a Rivly account. PayPal is a third-party service provider, and your use of PayPal is subject to the terms and conditions of PayPal, Inc. Rivly will not have any liability or support obligations for any issues relating to your PayPal account. We hereby disclaim and you hereby discharge, waive, and release us and our licensors and suppliers from any past, present, and future claims, liabilities, and damages, known or unknown, arising out of or relating to your interactions with such third parties and their products and services.

IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.” YOU HEREBY WAIVE ANY SIMILAR PROVISION IN ANY OTHER JURISDICTION.

c. Affiliates are not eligible for Commissions from their own personal accounts, any account directly linked to them, or any account controlled or under direct or indirect common control with another person (individual or entity), including referred accounts with exact same names, billing address, or e-mail addresses. As used herein, “control” means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership by voting securities, by contract, or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

d. We currently offer Affiliates the following commission payments for Qualified Referrals: 1.00% commission on the Qualified Referral’s Total Product Sales (as defined below) on Rivly (the “Commission”) until January 1, 2025 at 12:00am ET. “Total Product Sales” means gross merchandise volume by the Qualified Referral on Rivly’s platform through the Qualified Referral’s Seller Account during the Term less (i) discounts, allowances, rebates, and credits; (ii) shipping costs, gift wrapping or ancillary services; (iii) sales tax; (iv) monthly membership or marketplace application fees; (v) product returns; or (vi) any fees collected by Rivly other than direct product charges.

2. Promotion

a. Once you have signed up as an Affiliate under the Affiliate Referral Program, we will provide you with a unique referral link (“Link”) that links to a Rivly website to start the enrollment process for a Potential New Seller to become a Qualified Referral. Whenever you tell a Potential New Seller about Rivly and how we can help seamlessly diversify their revenue and increase their sales, you or the Potential New Seller must use your Link to receive credit in the event such Potential New Seller becomes a Qualified Referral. You must use the Link; otherwise, we will have no way of tracking or knowing where the Potential New Seller came from, and we will not be able to pay you any Commissions.

“Potential New Seller” means an eligible sole proprietor or entity in the United States that is referred to Rivly by accessing Rivly’s site through your Link, and such person (i) sells physical products that can be lawfully sold in the United States to consumers through ecommerce, and (ii) meets the requirements for becoming a Seller as set forth on the Rivly website. The following shall not be considered a Potential New Seller: (i) any person that is a current Seller or was a previous Seller of Rivly; and (ii) any person with whom Rivly has communicated regarding participation as a Seller in the six-month period prior to being referred to Rivly by you as can be demonstrated by Rivly’s records.
“Qualified Referral” means a Potential New Seller that becomes a Seller by signing up for a Seller Account through your Link.
“Seller” means a sole proprietor or entity in the United States that has an active Seller Account.
“Seller Account” means an account on the Rivly platform that is designated for the Seller to use the Services.

b. You and Rivly will cooperate in good faith to promote the Services. Each Link will permit recipients to navigate directly to a page on an Rivly website designated by us via a special tagged link format.

c. You will bear the entire cost, taxes, and expense of performing under this Agreement.

3. Use of Rivly Trademarks

a. Rivly hereby grants to you during the Term (defined in Section 7 below) a non-exclusive, non-transferable, revocable, royalty-free license to establish hyperlinks between your Affiliate Site and the Rivly website and to use Rivly’s trade names, logos, trademarks, and service marks (the “Marks”) solely for the purpose of marketing and promoting the Services.

b. The foregoing license does not include the right to, and Affiliate will not modify the Marks in any manner, incorporate any of the Marks into any other trademark or service mark, or combine the Marks with any other words, logos, designs, service marks or trademarks. Affiliate will comply with any trademark usage guidelines and instructions provided by Rivly in connection with Affiliate’s use of the Marks. We will have the right to review and monitor Affiliate’s use of the Marks. If there is any non-compliance with such guidelines and instructions, at Rivly’s request and direction, Affiliate will, at its sole cost, promptly correct any non-complying use of the Marks. Affiliate will not adopt brands, logos, trademarks, service marks, trade names or other marks which are the same as or confusingly similar to the Marks. Affiliate’s use of the Marks in any advertisement, web page, promotional materials, or other items shall be subject to Rivly’s prior review and approval, and Affiliate will furnish to Rivly an advance copy of each such items. All goodwill arising from Affiliate’s use of the Marks will inure solely to the benefit of Rivly. Affiliate will at all times maintain a high level of quality for the Affiliate Site.

c. Except as set forth above, we each reserve all right, title and interest in our respective intellectual property rights (e.g., patents, copyrights, trade secrets, trademarks, and other intellectual property rights) in the Marks, the Services, any other software, systems, hardware, equipment, processes, and technology of Rivly, any and all documentation related to the foregoing, and any modifications, enhancements, and improvements related to the foregoing. Use of Marks except as set forth herein is strictly prohibited.

d. Affiliate shall not (a) reverse engineer, disassemble or otherwise attempt to derive source code from the Services; or (b) remove, obscure, or alter Rivly’s copyright notices, trademark notices, or other proprietary rights notices affixed to or contained within the Services, or any documentation provided to Affiliate hereunder.

4. Community Forums

As an Affiliate of the Affiliate Referral Program, you may participate in discussions in the Rivly Seller Community both in our Facebook group and within our Rivly seller platform (if available). Your participation in these forums and message boards is subject to our Terms of Service.

5. Restricted Activities

a. General Restrictions. When seeking referrals pursuant to this Agreement, Affiliate will conduct its business and activities in a manner that promotes a good, positive image and reputation for Rivly and the Services and will comply with all applicable federal, state, and local laws and regulations. Without limiting the generality of the foregoing, Affiliate will not:

i. use any inappropriate form of promotional, marketing, or advertising activity with your Link or Affiliate Site, which includes use of any misleading hyperlinks and making any false, misleading, or disparaging representations or statements with regard to Rivly and the Services;

ii. engage in any unfair, deceptive, misleading, or illegal trade practice involving the Services;

iii. participate in any promotion, advertising, marketing, or sale of any imitation of the Services;

iv. include or provide for in any Affiliate Site any page, screen, or social media platform that contains content that: advocates discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promotes or engages in illegal activities; violates intellectual property rights of third parties; or contains or promotes deceptive information;

v. impersonate any Rivly employee;

vi. use any Marks to mislead Potential New Sellers into believing you are endorsed or employed by Rivly;

vii. use the string “Rivly” for any website domain name;

viii. spam or send bulk-emails including Links;

ix. use paid advertising, search, or social pages for promoting Links;

x. use its own Link to purchase any Services; and

xi. make or authorize any proposal, representation, warranty, guarantee, or communication relating to the Services that is inconsistent with Rivly’s standard terms and policies, or that has not been approved or otherwise authorized by Rivly in writing.

b. Export Controls and Sanctions Compliance. You understand and agree that:

i. The receipt and use of the Services may be subject to export control and economic sanctions laws of the United States and other applicable government authorities (“Export Control and Sanctions Laws”). You agree to abide by all Export Control and Sanctions Laws as they relate to your access, use and recommendation of the Services;

ii. You will not, directly or indirectly, access or use the Services if you are located in a jurisdiction where the provision of the Services is prohibited by law (a “Prohibited Jurisdiction”), including without limitation, Cuba, Iran, North Korea, Syria, Russia, and the Crimea region;

iii. You will not allow Potential New Sellers who are: (A) located in any Prohibited Jurisdiction; or (B) identified on the U.S. Treasury Department’s list of Specially Designated Nationals, the U.S. Department of Commerce’s Denied Persons List or Entity List, or subject to any other export control or economic sanctions lists or programs, to register for Rivly using your Link; and

iv. You represent and warrant that: (A) you are not named on or subject to any government sanctions programs or list of persons or entities prohibited from receiving U.S. exports or engaging in transactions with any U.S. person; (B) you are not located in, or a company registered in, any Prohibited Jurisdiction; and (C) you will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which you are located.

c. Anti-Corruption Compliance. You understand and agree that:

i. You will comply with all applicable United States and international anti-corruption and anti-bribery laws and regulations, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and others, as they relate to your access, use, and resale of the Services;

ii. You will not, directly or indirectly offer, promise, or give any payment or anything of value to a government official, or any other individual or entity, where the intent is to improperly influence any act or decision of the government official, or other individual or entity, to obtain or retain business or some other benefit or commercial advantage;

iii. You will not, directly or indirectly, solicit or accept any sort of payment or anything of value from anyone, where the intent is to improperly influence any act by you, any third-party acting on your behalf, or Rivly; and

iv. You acknowledge that you have not received or been offered any illegal or improper bribe, kickback, payment, gift or thing of value in connection with this Agreement.

6. Commissions

a. Affiliates may be required to complete and submit proper tax information to Rivly before commission payments will be issued.

b. You don’t have to worry about collecting any funds from any of the Potential New Sellers you refer to us. Rivly will track the product charges until January 1, 2025 at 12:00am ET. After the close of each month, Rivly will need to wait the until the return window closes for all purchases, then we will pay your Commissions for each month on or about the 15th of the 2nd month after month close. For example, for sales by Qualified Referrals that occurred in the month of January, the total Commission will be made available to your Seller Account on or about March 15th.

c. As an Affiliate of the Affiliate Referral Program, we will provide you with access to the Affiliate Referral Program Dashboard using your log-in credentials. There, you can see a summary report and performance for all Qualified Referrals directed from your Link. After each month closes, your Qualified Referrals’ sales will remain “Pending” until the customer return window until all the pertinent sales have closed and Rivly has reviewed Commissions for accuracy. Rivly will then make the Commission amount due “Available” in your Seller Account and you may request a payout for those funds (pending any tax compliance requirements).

d. You must request a payout for any available Commissions in your Seller Account in order for a payout to occur. You will be charged a 2% fee (up to a maximum amount of $20 USD) that will be deducted from each payout to assist in covering the fees imposed on us by PayPal in transferring the funds. All Commissions will be paid in United States Dollars.

e. You, and not Rivly, will be responsible for paying any and all applicable taxes and duties that may be imposed with respect to any compensation, Commissions, or payments received under or in connection with this Agreement.

f. At Rivly’s discretion, it may increase or decrease Commissions based on performance on a case-by-case basis by providing you with two (2) business days’ notice. Rivly does not guarantee increases in Commission to any Affiliate, and Rivly retains the right to change, modify, or cancel any commission plan at any time.

7. Term and Termination

The term of this Agreement (the “Term”) will begin upon your acceptance of this Agreement and will end when terminated in accordance with this Section 7. Either you or Rivly may terminate this Agreement at any time, with or without cause, by giving the other at least five (5) days written notice of termination. If not earlier terminated, this Agreement shall terminate on January 1, 2025 at 12:01am ET. Upon termination, Rivly will only be responsible for paying Commissions, and you shall be entitled to such Commissions, for all applicable Qualified Referrals as of the effective date of the termination; provided, that Rivly’s obligation to pay Commissions, and your right to receive such Commissions, will automatically expire on January 1, 2025 at 12:00am ET.

8. Representations and Warranties

Each of the parties hereby represents and warrants to the other that:

a. it has full power and authority to enter into this Agreement and to perform its obligations hereunder;

b. it has obtained all permits, licenses, and other governmental authorizations and approvals required for its performance under this Agreement; and

c.it will perform its obligations in compliance with all laws, rules, and regulations applicable to its activities pursuant to this Agreement.

9. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY

a. Rivly will remain solely responsible for the operation of the Rivly website and Services, and you will remain solely responsible for the operation of the Affiliate Site. Each party acknowledges that (i) their respective sites may be subject to temporary downtime due to causes beyond their reasonable control, and (ii) it retains sole right and control over the programming, content, and conduct of transactions over its respective site or service.

b. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES PROVIDED IN THIS AGREEMENT, THE SERVICES AND AFFILIATE REFERRAL PROGRAM ARE PROVIDED “AS IS,” AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, RIVLY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), STATUTORY, OR THROUGH COURSE OF DEALING, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE, AND ANY WARRANTY REGARDING (I) THE AMOUNT OF COMMISSIONS AFFILIATE MAY GENERATE DURING THE TERM, AND (II) ANY ECONOMIC OR OTHER BENEFIT THAT AFFILIATE MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT. RIVLY DOES NOT WARRANT THAT THE SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE SERVICES WILL BE SECURE OR UNINTERRUPTED.

c. UNDER NO CIRCUMSTANCES WILL RIVLY BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING ANY CLAIMS FOR LOST PROFITS, LOST BUSINESS, OR LOST DATA) ARISING OUT OF THIS AGREEMENT, EVEN IF RIVLY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. RIVLY’S ENTIRE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHER CAUSE OF ACTION WILL NOT EXCEED THE AMOUNTS PAID TO AFFILIATE UNDER THIS AGREEMENT IN THE THREE-MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.

10. Indemnification

You agree to indemnify, defend, and hold harmless us and our affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney’s fees) relating to the operation of any Affiliate Site, a breach of your obligations under this Agreement, or the violation of any third party intellectual property rights in respect of your Affiliate Site and activities under this Agreement.

11. Dispute Resolution; Binding Arbitration

Please read the following section carefully because it requires you to arbitrate certain disputes and claims with Rivly and limits the manner in which you can seek relief from us.

a. Except for small claims disputes in which you or Rivly seek to bring an individual action in small claims court, you and Rivly waive your rights to a jury trial and to have any dispute arising out of or related to this Agreement resolved in court. Instead, all disputes arising out of or relating to this Agreement will be resolved through confidential binding arbitration held in Boca Raton, Florida in accordance with the Streamlined Arbitration Rules and Procedures (“Rules”) of the Judicial Arbitration and Mediation Services (“JAMS”), which are available at www.jamsadr.com and are hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.

b. YOU AND RIVLY AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT IS PERSONAL TO YOU AND RIVLY AND THAT ANY DISPUTE WILL BE RESOLVED SOLELY THROUGH INDIVIDUAL ARBITRATION AND WILL NOT BE BROUGHT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER TYPE OF REPRESENTATIVE PROCEEDING.

c. You and Rivly agree that this Agreement affects interstate commerce and that the enforceability of this Section 11 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. All disputes between Rivly and you will be resolved by a single neutral arbitrator, and both parties shall have a reasonable opportunity to participate in the selection of the arbitrator. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, consolidate more than one individual’s claims, or preside over any proceeding involving more than one individual, all of which are prohibited by this Agreement. You and Rivly agree that for any arbitration you initiate, you will pay the filing fee and Rivly will pay the remaining JAMS fees and costs. For any arbitration initiated by Rivly, Rivly will pay all JAMS fees and costs. You and Rivly expressly agree that the state and federal courts of Tampa, Florida shall have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.

d. Any claim related to this Agreement must be filed within one year after the claim arose; otherwise, you and Rivly no longer have the right to assert the claim.

e. You have the right to opt out of binding arbitration within 30 days of the date you first accepted the terms of this Section 11 by sending a written letter to Rivly, Attention: Affiliate Referral Program, 700 S Harbour Island Blvd Ste 803, Tampa, FL 33602, that specifies (i) your name, (ii) mailing address, and (iii) your request to be excluded from the final, binding arbitration procedure specified above. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 12(c) of this Agreement.

12. General Provisions

a. You and Rivly are entering this Agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture or employment relationship between you and us. Neither party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other party. Each party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished. Each party has the sole discretion to determine such party’s methods of operation, accounting practices, the types and amounts of insurance such party carries, personnel practices, advertising and promotion, customers, and service areas and methods. Any persons employed or engaged by each party in connection with the performance of its respective obligations hereunder shall be such party’s employees or contractors and such party shall be fully responsible for them and indemnify the other party against any claims made by or on behalf of any such employees or contractors.

b. Neither you or we will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond our respective reasonable control. If any force majeure event occurs, the affected party will give prompt written notice to the other and will use commercially reasonable efforts to minimize the impact of the event.

c. This Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of Florida, without reference to its conflict of laws provisions. You and Rivly expressly agree to exclusive jurisdiction in any competent court in Tampa, Florida.

d. Any notices under this Agreement will be given in writing. Notices may be given via electronic means, including by Rivly sending an email notification to the address associated with your account or providing notice through our Services, and will be deemed delivered and given for all purposes on the sent date, but, in the case of notices to Rivly, only if Rivly has confirmed its receipt by return electronic mail. Notices sent via traditional means will be sent via postal mail or certified mail, return receipt requested. Notices to Rivly will be sent to: Rivly, Attention: Affiliate Referral Program, 700 S Harbour Island Blvd Ste 803, Tampa, FL 33602.

e. You may not assign this Agreement, in whole or in part, without our prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.

f. The failure of either you or us to enforce any provision of this Agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.

g. This Agreement represents the entire agreement between you and us with respect to the subject matter covered by this Agreement and supersedes any other oral or written agreements regarding such subject matter. Rivly reserves the right to suspend, terminate, or amend the Affiliate Referral Program at any time, and from time to time, in its sole discretion, including but not limited to situations where a change to its structure is necessary or appropriate to comply with relevant laws or regulations. Rivly may amend the Agreement at any time during the term by posting the amended Agreement to Rivly’s website and notifying you of the amended Agreement by email notification. This version of the Agreement is in effect as of the Amendment Effective Date and amends, restates, and supersedes the prior version of the Agreement that were in effect as of the Original Effective Date.

h. If any provision of this Agreement is determined to be invalid, unlawful, void, or unenforceable to any extent, such provision will be interpreted to best reflect the parties’ intent, and the remainder of this Agreement will not be affected and will continue to be valid and enforceable to the fullest extent permitted by law.

i. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

j. Rivly may disclose information to you, or you may otherwise learn such information, that is designated as confidential or that reasonably should be understood to be confidential (“Confidential Information”) in connection with your performance under this Agreement. You agree to only use Rivly’s Confidential Information for its intended purpose and agree to maintain the confidentiality of Confidential Information during the Term and for a period of two years following termination of this Agreement, except that the non-disclosure and use restriction obligations shall survive with respect to Confidential Information for as long as such Confidential Information retains its status as a trade secret under applicable law. You shall provide prompt notification to Rivly of any unauthorized access to or disclosure of Rivly’s Confidential Information. The term “Confidential Information” shall not include any information that is or becomes publicly and widely known through no wrongful act of you, nor information that was independently developed by you without use of or reference to Rivly’s Confidential Information.