Partner & Affiliate Program Terms

This Partner/Affiliate Agreement (the “Agreement”) is between Atomic Elevator, Inc., a Montana corporation (“Company”), and you (“Partner”). By enrolling in the Program, clicking “I Agree” (or similar) within any Affiliate Tool we provide, or by otherwise participating in the Program, you acknowledge that you have read, understood, and agree to be bound by this Agreement.

1. Definitions

The following terms shall have the meanings set forth below:

"Affiliate Tool" refers to any tool or software provided by Company to Partner to facilitate participation in the Program.

"Agreement" refers to this Partner/Affiliate Agreement, as may be updated from time to time.

"Company Intellectual Property" refers to all intellectual property rights owned or licensed by Company, including but not limited to, the Ella Platform, its software, code, user interfaces, designs, trademarks (e.g., "Ella," "Atomic Elevator"), service marks, trade names, copyrights, trade secrets, patents, and any related documentation, whether registered or unregistered, and all applications and registrations therefor.

"Confidential Information" refers to any non-public information, whether written or oral, tangible or intangible, designated as confidential or which, by the nature of the circumstances surrounding disclosure, ought to be treated as confidential, belonging to either party. This includes, but is not limited to, business plans, financial information, customer data, technical data, product roadmaps, marketing strategies, pricing, operational methods, know-how, and trade secrets. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the receiving party; (b) was already in the receiving party's possession without restriction prior to disclosure by the disclosing party; (c) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information; or (d) is rightfully obtained by the receiving party from a third party without restriction and without breach of this Agreement.

"Customer" refers to an end-user who subscribes to, accesses, or uses the Ella Platform or services related thereto.

"Ella Platform" refers to the software-as-a-service platform provided by Company under the product name "Ella," including all associated software, applications, features, and functionality.

"Program" refers to the specific terms and conditions governing the partnership between Company and Partner, as detailed in the Program Policies Page, which is incorporated herein by reference.

"Program Details" means the specific terms, conditions, and policies governing participation in the Program, as posted on the Program Policies Page within the Affiliate Tool. Company may update the Program Details from time to time, and such updates are incorporated into this Agreement upon posting. Partner acknowledges that accessing or participating in the Program constitutes acceptance of the then-current Program Details.

"Referral" refers to a prospective Customer introduced to Company by Partner, as tracked and verified by Company's systems in accordance with the Program.

2. Purpose and Scope

This Agreement sets forth the general terms and conditions under which Partner will collaborate with Company in connection with the Ella Platform. The specific details of the partnership, including the exact nature of Partner's activities, compensation, and performance metrics, are exclusively governed by the Program Details.. Both parties agree to collaborate in good faith to achieve the objectives of the Program.

This Agreement does not create an exclusive agreement between you and us, and both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, and use of similar services and products of third parties.

3. Compensation and Payment

3.1. Program Details and Compensation: The specific compensation plan for the Partner, including commission rates, wholesale pricing, and any other payment terms, shall be defined in the Program Details.

3.2. Requirements for Payment; Forfeiture:

To be eligible for payment under this Agreement, Partner must have: (i) agreed to the terms of this Agreement; (ii) completed all steps necessary to create its account in the Affiliate Tool in accordance with Company’s directions; (iii) have a valid and up-to-date payment method in the Affiliate Tool ; and (iv) completed any and all required tax documentation in order for the Affiliate Tool to process any payments that may be owed. Notwithstanding the foregoing, if any of these requirements remain outstanding for six (6) months immediately following the close of a Customer Transaction, then Partner’s right to receive Commission arising from that transaction will be forever forfeited.

3.3. Third-Party Payment Processors: Company may utilize third-party payment processors or service providers to facilitate payments under the Program. Partner is solely responsible for providing and maintaining with the Company and any Payment Processors, its current contact information and address for receipt of payments. Company will have no liability for, and will not resend, payments returned due to incorrect payment addresses.

3.4. Taxes: Partner is responsible for the payment of all taxes and fees (including bank fees) applicable to any Commission.

3.5. Reporting and Payment Schedule: Company will track and report on Referrals and Customer subscriptions as defined in the Program Details. Payments will be made in accordance with the schedule specified in the Program Details.

4. Representations and Warranties

4.1. Mutual Representations and Warranties: Each Party represents and warrants to the other that:

It is duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation or formation.

It has the full corporate power and authority to enter into this Agreement and to carry out its obligations hereunder.

The execution and delivery of this Agreement and the performance of its obligations hereunder do not conflict with or violate any other agreement to which it is a party or any applicable law, rule, or regulation.

This Agreement constitutes a valid and binding obligation of such Party, enforceable against it in accordance with its terms.

4.2. Partner Representations and Warranties: Partner further represents and warrants to Company that:

It will perform its obligations under this Agreement in a professional, ethical, and lawful manner, consistent with generally accepted industry standards.

It has obtained all necessary licenses, permits, and authorizations required to perform its obligations under this Agreement.

All information provided by Partner to Company is true, accurate, and complete.

It will not engage in any deceptive, misleading, or unethical practices that could negatively impact the reputation or business of Company or the Ella Platform.

Its activities under this Agreement will comply with all applicable laws and regulations, including, but not limited to, consumer protection laws, privacy laws (e.g., GDPR, CCPA), and advertising regulations (e.g., FTC disclosure guidelines).

5. Covenants

5.1. Partner Covenants: Partner covenants and agrees that it shall:

Use commercially reasonable efforts to promote the Ella Platform in accordance with the Program Details.

Comply with all brand guidelines, marketing policies, and usage restrictions provided or approved by Company regarding the Ella Platform and Company Intellectual Property.

Not make any representations, warranties, or guarantees about the Ella Platform on behalf of Company that are not explicitly authorized or provided by Company.

Not bid on Company's trademarks (e.g., "Ella," "Atomic Elevator") or any confusingly similar variations thereof in search engine marketing campaigns or any other online advertising without Company's express prior written consent.

Not engage in any of the following activities:

Purchasing ads that could be considered as competing with Company’s own advertising, including, but not limited to, our branded keywords.

Cookie stuffing or using pop-ups, false, or misleading links.

Attempting to mask the referring URL information.

Using Partner’s own Affiliate Link to purchase Company products for itself.

Using any mechanisms to deliver leads other than through an intended consumer, which includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (e.g., robots, iframes, or hidden frames), or offering incentives to encourage purchases or signups.

Immediately cease any activity deemed objectionable by Company upon notice, including, but not limited to, any form of spamming, incentivized traffic, or misleading advertising.

Be solely responsible for disclosing the nature of its referral/partnership relationship with the Company to any leads or customers.

5.2. Company Covenants: Company covenants and agrees that it shall:

Provide Partner with access to marketing materials, tracking tools, and other resources reasonably necessary for Partner to perform its obligations under the Program Details.

Process and manage Customer inquiries and subscriptions in a timely and efficient manner.

Provide Partner with reasonable support and communication regarding the Program.

Accurately track and report on Referrals and Customer subscriptions generated by Partner using Company's standard tracking mechanisms.

6. Intellectual Property

6.1. Company Intellectual Property: Partner acknowledges that all Company Intellectual Property is and shall remain the exclusive property of Company. Partner is granted a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to use Company's trademarks, service marks, logos, and marketing materials solely for the purpose of fulfilling its obligations under this Agreement and the Program Details. Partner will not attack, question, or contest the validity of Company’s ownership of Company Intellectual Property Rights, both during the Term and thereafter. Partner shall not modify, adapt, reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Ella Platform or any Company Intellectual Property. Partner shall not use Company Intellectual Property in any manner that implies endorsement or affiliation not expressly authorized by this Agreement.

6.2. Partner Intellectual Property: Company acknowledges that Partner retains all rights to its own intellectual property, including any trademarks, service marks, logos, and proprietary methodologies, except as expressly licensed to Company within a specific Program Detail. Partner grants to Company a nonexclusive, nontransferable, royalty-free right to use and display Partner's trademarks, service marks and logos in connection with the Program and this Agreement.

6.3. Feedback: Partner agrees that all comments and suggestions provided to Company regarding the Ella Platform or services will be non-confidential and that Company owns all rights to use and incorporate them without payment to Partner.

6.4. No Implied Licenses: Nothing in this Agreement grants either party any right, title, or interest in the intellectual property of the other, except for the limited licenses expressly provided herein or in an applicable Program Detail.

7. Confidentiality

7.1. Obligations: Both parties acknowledge that in the course of performing this Agreement, they may have access to Confidential Information of the other party. Each party (the "Receiving Party") agrees to:

Maintain all Confidential Information of the other party (the "Disclosing Party") in strict confidence.

Not disclose, reproduce, or distribute the Disclosing Party's Confidential Information to any third party without the prior written consent of the Disclosing Party.

Not use the Disclosing Party's Confidential Information for any purpose other than for the performance of its obligations under this Agreement.

Protect the Disclosing Party's Confidential Information with the same degree of care it uses to protect its own confidential information of a similar nature, but in no event less than a reasonable degree of care.

Limit access to Confidential Information to its employees, contractors, and agents who have a need to know such information for purposes of this Agreement and who are bound by confidentiality obligations at least as restrictive as those contained herein.

7.2. Compelled Disclosure: If the Receiving Party is compelled by law, regulation, or court order to disclose any Confidential Information, it shall provide the Disclosing Party with prompt prior written notice (unless prohibited by law) to allow the Disclosing Party to seek a protective order or other appropriate remedy.

7.3. Survival: The obligations of confidentiality set forth in this Section 6 shall survive the termination or expiration of this Agreement for a period of three (3) years.

8. Term and Termination

8.1. Term: This Agreement shall commence on the Effective Date and shall continue until terminated by either party as provided herein or as specified in the applicable Program Details.

8.2. Termination for Convenience: Either party may terminate this Agreement for any reason upon thirty (30) days' prior written notice to the other party.

8.3. Termination for Agreement Changes: If Company updates or replaces the terms of this Agreement, Partner may terminate this Agreement on five (5) days written notice to Company, provided that Partner sends written notice within ten (10) days after Company sends notice of the change.

8.4. Termination for Cause: Either party may terminate this Agreement immediately upon written notice to the other party if the other party:

Materially breaches any provision of this Agreement or the applicable Program Details and fails to cure such breach within fifteen (15) days after receiving written notice thereof.

Becomes insolvent, files for bankruptcy, makes an assignment for the benefit of creditors, or is unable to pay its debts as they become due.

Company may also terminate immediately if Partner breaches the terms applicable to a subscription with Company or if Company determines that Partner is acting, or has acted, in a way that has or may negatively reflect on or affect Company, its prospects, or its customers.

8.5. Effect on Commissions. Expiration of this Agreement, and termination of this Agreement: (a) without cause by Company; (b) by Partner with cause; or (c) by Partner due to Agreement changes, shall not affect Company's obligation to pay Partner a Commission, so long as the related payment by the Customer is recognized by Company within thirty (30) days after the date of such termination or expiration. Provided however, in the event of termination without cause by Partner, or for cause by Company, Company’s obligation to pay and Partner’s right to receive any Commission will terminate upon the date of such termination.

9. Disclaimers

EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT AND THE APPLICABLE PROGRAM DETAILS, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT THE ELLA PLATFORM WILL BE ERROR-FREE, UNINTERRUPTED, OR MEET PARTNER'S OR CUSTOMERS' REQUIREMENTS. THE ELLA PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE".

10. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, DATA, GOODWILL, OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE ELLA PLATFORM, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EACH PARTY'S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY COMPANY TO PARTNER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION SHALL NOT APPLY TO LIABILITY ARISING FROM: (A) A PARTY'S INDEMNIFICATION OBLIGATIONS; (B) A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; OR (C) CLAIMS FOR FRAUD OR WILLFUL MISCONDUCT.

11. Indemnification

11.1. By Partner: Partner agrees to indemnify, defend, and hold harmless Company, its officers, directors, employees, and agents from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with: (a) Partner's breach of any representation, warranty, covenant, or other obligation under this Agreement or the Program Details; (b) Partner's gross negligence or willful misconduct; (c) any misrepresentation, false advertising, or deceptive practice made by Partner regarding the Ella Platform or Company; (d) Partner's non-compliance with any applicable laws or regulations; or (e) any claim that Partner's activities infringe upon or misappropriate the intellectual property rights of a third party.

11.2. By Company (Limited): Company agrees to indemnify, defend, and hold harmless Partner from and against any third-party claims that the Ella Platform, as provided by Company without modification by Partner, directly infringes a valid U.S. patent or copyright, provided that Partner: (a) promptly notifies Company of the claim; (b) grants Company sole control over the defense and settlement of the claim; and (c) provides reasonable cooperation and assistance to Company in the defense thereof. Company shall have no indemnification obligation if the infringement claim arises from: (i) the use of the Ella Platform in combination with other software, hardware, or data not provided by Company; (ii) modifications to the Ella Platform not made or authorized by Company; or (iii) Partner's continued allegedly infringing activity after being notified thereof.

12. Independent Contractors

The relationship between the parties is that of independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the parties. Neither party has the authority to bind the other or incur obligations on its behalf, and neither party shall hold itself out as having such authority. Partner shall be solely responsible for all of its employees, contractors, and agents, and for all costs and expenses incurred by Partner in performing its obligations under this Agreement.

13. Governing Law and Dispute Resolution

13.1. Governing Law: This Agreement shall be governed by and construed in accordance with the internal laws of the State of Montana, without regard to its conflict of laws principles.

13.2. Dispute Resolution: Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, shall be finally settled by arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules. The arbitration shall take place in Red Lodge, Montana, or another location mutually agreed upon by the parties. The language of the arbitration shall be English. The award rendered by the arbitrator(s) shall be final and binding upon both parties, and judgment may be entered thereon in any court having jurisdiction thereof. Each party shall bear its own attorneys' fees and costs in connection with the arbitration, and the parties shall share equally the fees and expenses of the arbitrator(s).

14. Miscellaneous

14.1. Entire Agreement: This Agreement, together with the Program Details and any other policies or terms incorporated by reference, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, proposals, representations, and warranties, whether written or oral, regarding such subject matter.

14.2. Amendments: Company may update or change any part or all of this Agreement at any time. The updated Agreement will be made available to Partner via the Affiliate Tool and/or by email. The updated Agreement will become effective and binding on the next business day after Company has notified Partner. Partner's continued participation in the Program following such notification constitutes acceptance of the updated Agreement.

14.3. Waiver: The failure of either party to enforce any right or provision of this Agreement will not constitute a waiver of future enforcement of that right or provision. A waiver of any breach or default will not be a waiver of any subsequent breach or default.

14.4. Severability: If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the invalid or unenforceable provision shall be replaced with a valid and enforceable provision that achieves the original intent and economic effect of the invalid or unenforceable provision.

14.5. Assignment: Neither party may assign or transfer this Agreement, in whole or in part, by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, Company may assign this Agreement without Partner's consent in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.

14.6. Notices: All notices, consents, and other communications required or permitted under this Agreement shall be in writing and deemed given when delivered by email to the primary contact email address on file in the Affiliate Tool. Company may also give electronic notices specific to Partner by email or through the Affiliate Tool’s in-app notification system.

14.7. Force Majeure: Neither party shall be liable for any delay or failure in performance hereunder due to causes beyond its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation, facilities, fuel, energy, labor, or materials (a "Force Majeure Event"). The party affected by the Force Majeure Event shall provide prompt notice to the other party and use commercially reasonable efforts to mitigate the effects of the Force Majeure Event.

14.8. Headings: The headings in this Agreement are for convenience of reference only and shall not affect its interpretation.