SALES AND REFERRAL TERMS AND CONDITIONS

1.     BACKGROUND AND DEFINED TERMS

1.1     Background.  These Sales and Referral Terms and Condition are part of the Sales and Referral Agreement (the “Agreement”) entered into between you (“School” or “you”) and Aceable Inc., a Delaware corporation (“Aceable“) and govern the relationship between you and Aceable with respect to the subject matter contained in the Order Form you submitted with the Agreement (your “Order Form”).

2.     SCHOOL AS AFFILIATE

2.1     Applicability.  The terms and conditions of this Section shall only apply if you selected the “I want our school to be an Aceable affiliate” option on your Order Form.

2.2     School Appointment.  Aceable hereby appoints School as its non-exclusive affiliate to refer bona fide students of School between the ages of fourteen (14) and eighteen (18) years of age (“Qualified Online Students”) as further described in this Section. During the period beginning on the Effective Date of the Agreement and continuing for the School Affiliate Term specified in your Order Form, Aceable shall designate a URL on its website to School (“School URL”) where Qualified Online Students may purchase the Aceable courses selected in the “Become an Aceable Affiliate!” section of your Order Form (“Aceable Affiliate Courses”).

2.3     School Commission.  School shall not be entitled to any commission or other fee under this Section except when: (i) a Qualified Online Student accesses Aceable’s website through the School URL, (ii) such Qualified Online Student purchases an Aceable Affiliate Course via the School URL webpage, (iii) such purchase is made at Aceable’s then current list price, (iv) Aceable has received payment in full for such purchase, and (v) Aceable has received at least $100.00 from transactions initiated through the School URL webpage (“Qualified School Sale”). Upon a Qualified School Sale, School shall be entitled to a commission (“School Commission”) equal to the product of (i) the School Commission Percentage specified in your order form, multiplied by (ii) the difference of (a) the total amounts actually received by Aceable for a Qualified School Sale, minus (b) taxes.

2.4     Referral Terms.  School may only refer Qualified Online Students through the School URL. As a condition to any Qualified School Sale, the designated Qualified Online Student (or her/his guardian, if applicable) shall be required to accept the Aceable terms and conditions applicable to such Aceable Affiliate Course as determined by Aceable, and to acknowledge that such Aceable Affiliate Course must be completed within the timeframe specified in such applicable terms and conditions.

2.5     Withholdings.  If a successful chargeback occurs on a Qualified School Sale after a School Commission has been paid to School on such Qualified School Sale, Aceable may withhold an amount equal to such School Commission from a subsequent Qualified School Sale.

2.6     Affiliate Exclusivity.  During the School Affiliate Term, School shall not act as an affiliate to refer students to any online driver education course other than Aceable Affiliate Courses.

3. SCHOOL AS LOCAL SUPPORT AFFILIATE

3.1     Applicability.  The terms and conditions of this Section shall only apply if you selected the “I want our school to be an Aceable Local Support Affiliate” option on your Order Form.

3.2     School Appointment.  Aceable hereby appoints School as its non-exclusive local support affiliate to provide Territory-specific curriculum support Aceable students in the Territory (“Local Students”) as further described in this Section. During the period beginning on the Effective Date of the Agreement and continuing for the Local Support Affiliate Term specified in your Order Form, you agree to (i) support such Local Students as Aceable may request from time to time with curriculum specific to the Territory in accordance with the Support Standards, and (ii) process such course completion certificates (and replacements thereof) as Aceable provides from time to time for Local Students, in accordance with the Processing Standards. The “Support Standards” means that you shall reply to a support request within two (2) business hours (8 a.m. – 5 p.m. CST). The “Processing Standards” are that (a) all certificates shall be sent in accordance with Aceable instructions and (b) all certificates shall be sent on the business day following Aceable request. Aceable will provide paper, cloud-based storage for certificates, a label printer and labels, envelopes, a printer and ink, and a Shipstation (or similar) log-in to be used solely for the processing of Aceable certificates. All other materials and personnel cost associated with your responsibilities will be provided at School’s own expense.

3.3     School Processing Fee.   Upon confirmation of successful processing of a certificate for a Local Student, School shall be entitled to a processing fee (“Processing Fee”) equal to $4.00.

3.4     Affiliate Exclusivity.  During the School Affiliate Term, School shall not act as a local processing affiliate for any other provider of online education courses.

4.     SCHOOL AS RESELLER

4.1      Applicability.  The terms and conditions of this Section shall only apply if you selected the “I want our school to be a reseller of Aceable’s courses” option on your Order Form and are otherwise of no effect.

4.2      Appointment and Orders.  Aceable hereby appoints School as a non-exclusive reseller of the Aceable courses selected in the “Become a Reseller of Aceable’s Courses!” section of your Order Form (“Aceable Reseller Courses”).  During the period beginning on the Effective Date of the Agreement and continuing for the School Reseller Term specified in your Order Form, School may notify Aceable through Aceable’s website that School desires to order a block of Aceable Reseller Courses for resale to Qualified Online Students in accordance with the Agreement (each such notification, an “Order”). Each Order shall specify the number of Qualified Online Students that School desires to resell Aceable Reseller Courses to. Following acceptance of an Order, Aceable shall issue School a corresponding number of activation codes, which Qualified Online Students may purchase to activate the applicable Aceable Reseller Courses. All payments for Orders are nonrefundable.

4.3      Aceable Reseller Courses Pricing. The purchase price (“Purchase Price”) for Aceable Reseller Courses in an Order shall be equal to the product of (i) the Discount Percentage specified in your Order Form, multiplied by (ii) Aceable’s then current list price of such Aceable Reseller Courses as published on Aceable’s website.

4.4      Terms of Resale.  School may only resell Aceable Reseller Courses purchased hereunder to Qualified Online Students, and for personal use. Unless otherwise agreed in writing by Aceable therein, pricing for such resold Aceable Reseller Courses shall be two (2) times the Purchase Price of such Aceable Reseller Courses. As a condition to any such resale, the designated Qualified Online Student (or her/his guardian, if applicable) must accept the Aceable terms and conditions applicable to such Aceable Reseller Course as determined by Aceable, and to acknowledge that such Aceable Reseller Course must be completed within the timeframe specified in such applicable terms and conditions. School shall be solely responsible for collecting payment from Qualified Online Students (including calculating, collecting and remitting applicable taxes) for resold Aceable Reseller Courses.

4.5   Taxes.  School will be responsible for, and will pay in a timely manner all taxes and charges levied as the result of the sale of Aceable Reseller Courses to School under this Section.

4.6   Reseller Exclusivity.  During the School Reseller Term, School shall not offer any online driver education course for sale to Qualified Online Students other than Aceable Reseller Courses.

5.     ACEABLE AS AFFILIATE

5.1      Applicability.  The terms and conditions of this Section shall only apply if you selected the “I want Aceable to be our affiliate” option on your Order Form.

5.2     Aceable Appointment.  School hereby appoints Aceable as its non-exclusive affiliate to refer students of Aceable (“Qualified BTW Students”) as described hereunder. During the period beginning on the Effective Date of the Agreement and continuing for the Aceable Affiliate Term specified in your Order Form, School shall designate a URL on its website to Aceable (“Aceable URL”) where Qualified BTW Students may purchase the courses listed in the “Have Aceable Become Your Affiliate!” section of your Order Form (“School Affiliate Courses”).

5.3     Aceable Commission.  Aceable shall not be entitled to any commission or other fee hereunder except when: (i) a Qualified BTW Student accesses School’s website through the Aceable URL, (ii) such Qualified BTW Student purchases a School Affiliate Course via the Aceable URL webpage, and (iii) School has received payment in full for such purchase (“Qualified Aceable Sale”). Upon a Qualified Aceable Sale, Aceable shall be entitled to a commission (“Aceable Commission”), equal to the the product of (i) the Aceable Commission Percentage specified in your order form, multiplied by (ii) the difference of (a) the total amounts actually received by School for a Qualified Aceable Sale, minus (b) taxes. All Aceable Commissions paid to Aceable are nonrefundable.

6.     ACEABLE AS PRE-SELLER

6.1      Applicability.  The terms and conditions of this Section shall only apply if you selected the “I want Aceable to be a pre-seller of our courses” option on your Order Form.

6.2      Appointment.  School hereby appoints Aceable as a non-exclusive pre-seller of the courses listed in the “Have Aceable Become a Pre-Seller of Your Courses!” section of your Order Form (“School Pre-Seller Courses”). As such, Aceable may promote, collect orders for, and process payment for School Pre-Seller Courses on terms (including pricing) communicated to Aceable by School from time to time, provided that it is agreed and understood that in so-doing, (i) Aceable is acting solely as an authorized sales channel and payment processor for School, (ii) the prospective students shall be required to contract with School directly for the applicable School Pre-Seller Courses, and (iii) School shall be solely responsible for fulfillment, refunds, and support.

6.3      Pre-Seller Commission.  Aceable shall remit to Seller the proceeds of each School Pre-Seller Course order collected by Aceable pursuant to Section 6.2 where Aceable receives full payment for such School Pre-Seller Courses (“Qualified Pre-Sale”), less (i) taxes, and (ii) the Aceable Pre-Sale Commission specified in your Order Form (collectively, “Pre-Sale Remittance”). The Aceable Pre-Seller Commission shall be calculated exclusive of any amount that School instructs Aceable to specify as an applicable sales tax line item. For the avoidance of doubt, if no such amount is specified, the Aceable Pre-Seller Commission shall be calculated on the entire amount processed by Aceable for such Qualified Pre-Sale. Aceable Pre-Seller Commissions retained by Aceable upon remittance of the Pre-Sale Remittance shall be non-refundable and non-creditable unless otherwise agreed in writing by Aceable.

6.4      Taxes.  School shall be solely responsible for calculating sales tax (if any) applicable to the sale of School Pre-Seller Courses and for remitting such taxes to any applicable authority from the Pre-Sale Remittance.

7.     PAYMENT TERMS

7.1     Remittance.  Within thirty (30) days after the end of each month, (i) School will remit to Aceable all commissions and other payment amounts owed to Aceable pursuant to Sections 3 and 4, and (ii) Aceable will remit all commissions and other payment amounts owed to School pursuant to Sections 2, 5 and 6, in each case, for obligations incurred during such month, if any. All payments will be made in U.S. dollars.

7.2     Taxes.  Each party shall be solely responsible for calculating taxes on its income (if any) arising out of the Agreement and for remitting such taxes to any applicable authority.

8.     SCHOOL REPRESENTATIONS AND WARRANTIES.

8.1       In advertising and marketing Aceable Affiliate Courses and Aceable Reseller Courses (collectively, “Aceable Products”) or otherwise performing under the Agreement, School will (i) not engage in any deceptive, misleading, illegal, or unethical practices, (ii) not make any representations, warranties, or guarantees concerning Aceable Products that are inconsistent with or in addition to those made by Aceable in the Agreement or its standard applicable end user terms, and (iii) comply with all applicable federal, state, and local laws and regulations.  School will provide a reasonable amount of training to its personnel concerning Aceable Products. School will provide curriculum support in a professional and workmanlike manner consistent with the standards provided to School by Aceable from time to time.

9.     PROPRIETARY RIGHTS

9.1     Proprietary Rights.  Title to and ownership of Aceable Products, and all related software and documentation, including, without limitation, derivative works, compilations, or collective works thereof and all related intellectual property and proprietary rights therein, are and will remain the exclusive property of Aceable and its licensors.

9.2     Restrictions.  School will not, and will not permit or authorize third parties to: (i) reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of Aceable Products or related technology; (ii) rent, lease, or sublicense Aceable Products; (iii) use Aceable Products on a service bureau or application service provider basis; (iv) circumvent or disable any technological features or measures in Aceable Products; (v) remove or alter any proprietary notices, legends, symbols, or labels appearing on or in copies of Aceable Products or any related documentation; or (vi) use or promote Aceable Products in violation of applicable law.

10.     TERM AND TERMINATION

10.1     Term.  The Agreement will commence upon the Effective Date and continue for a period of the longer of the (i) School Affiliate Term, (ii) School Local Support Affiliate Term, (iii) School Reseller Term, (iv) Aceable Affiliate Term, or (v) Aceable Pre-Seller Term. The Agreement will automatically renew for additional terms equal the initial term, unless at least ninety (90) 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.

10.2     Termination for Cause.  If either party is in breach of the Agreement and fails to cure such breach within thirty (30) days of receiving notice thereof, the other party may terminate the Agreement by giving written notice of termination. If School is a Local Support Affiliate, Aceable may terminate School’s status as such by providing written notice is School fails to meet the Support Standards and/or Processing Standards for ninety-eight percent (98%) of requests in any one-month period.

10.3     Termination for Convenience.  Either party may terminate the Agreement for its convenience by providing the other party with ninety (90) days’ written notice.

10.4     No Liability for Termination.  Except as expressly required by law, in the event of termination of the Agreement by either party in accordance with any of the provisions of the Agreement, neither party will be liable to the other, because of such termination, for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, inventory, investments, leases, or commitments. Termination will not, however, relieve either party of obligations incurred prior to the effective date of the termination.

10.5     Effects of Termination.  The following provisions will survive any expiration or termination of the Agreement: Sections 3.2, 4.2, 5.2 and 6.2 (as to amounts owed as of termination), 9, 10.4, 10.5 and 11–15.

11.   NAME AND TRADEMARK USAGE

11.1   Trademarks.  Subject to the provisions of this Section and Section 8, during the term of the Agreement, each party will have the right to use the trademarks, trade names, service marks, name and logos (“Trademarks”) of the other party in advertising and marketing materials regarding Aceable Products, and School Affiliate Courses and School Pre-Seller Courses, as applicable, subject to such Trademarks’ owner’s prior inspection and written approval, including approval of design, color and other details of the proposed representation of such Trademarks, in each case such approval not to be unreasonably withheld. Each party will fully comply with all guidelines, if any, communicated by a Trademark’s owner concerning the use of such Trademark.

11.2   Use of Trademarks.  School will not alter or remove any of Aceable’s Trademarks affixed to or otherwise contained on or within Aceable Products. Except as set forth in this Section, nothing contained in the Agreement will grant or will be deemed to grant to a party any right, title, or interest in or to the other party’s Trademarks. At no time will a licensee under Section 11.1 challenge or assist others to challenge the other party’s Trademarks (except to the extent expressly required by applicable law) or the registration thereof or attempt to register any Trademarks that are confusingly similar to those of the other party. Upon termination of the Agreement, each party will immediately cease to use all Trademarks of the other party.

12.   WARRANTY DISCLAIMER.  EXCEPT FOR ANY EXPRESS WRITTEN WARRANTIES PROVIDED TO QUALIFIED ONLINE STUDENTS IN THE ACEABLE TERMS AND CONDITIONS APPLICABLE TO AN ACEABLE PRODUCT, ACEABLE MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND HEREUNDER, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. ACEABLE EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE. SCHOOL WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF ACEABLE TO THIRD PARTY.

13.   CONFIDENTIAL INFORMATION

13.1   Defined.  “Confidential Information” means any proprietary information of a party to the agreement disclosed by one party to the other, whether orally or in writing, and designated as “Confidential” or in some other manner to indicate its confidential nature. Non-public information or features related to Aceable Products and the terms of the agreement will be deemed to be the Confidential Information of Aceable, whether marked as such or not.

13.2   Exceptions.  Confidential Information will not include any information that (i) was publicly known and made generally available prior to the time of disclosure by the disclosing party, (ii) 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, (iii) is already in the possession of the receiving party at the time of disclosure, (iv) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality, or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

13.3   Non-Use and Non-Disclosure.  Except as otherwise provided by the agreement, each party will (i) treat as confidential all Confidential Information of the other party, (ii) 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 (iii) will not use such Confidential Information except in connection with performing its obligations or exercising its rights under the 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.

14.   LIMITATION OF LIABILITY

14.1     IN NO EVENT SHALL ACEABLE BE LIABLE TO SCHOOL FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF THE PERFORMANCE OR NONPERFORMANCE OF ACEABLE PRODUCTS, OR OTHERWISE ARISING IN CONNECTION WITH, THE AGREEMENT, WHETHER SUCH CLAIMS ARE BASED IN CONTRACT, TORT OR OTHER LEGAL THEORY. UNDER NO CIRCUMSTANCES WILL ACEABLE’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THE AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, INDEMNITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO, OWED TO, AND/OR RETAINED BY ACEABLE UNDER THE AGREEMENT IN THE SIX (6) MONTHS PRECEDING THE APPLICABLE CLAIM.

14.2     EACH PROVISION OF THE AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THE AGREEMENT BETWEEN THE PARTIES AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.

15.   GENERAL

15.1   Independent Contractors.  The relationship of the parties established by the Agreement is that of independent contractors. Financial and other obligations associated with each party’s business are the sole responsibility of that party.

15.2   Non-Assignability and Binding Effect.  Neither party may assign its rights and obligations under the Agreement without the written consent of the other, except pursuant to a merger, acquisition, or sale of all or substantially all of its assets.  Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their successors and assigns.

15.3   Notices.  Any notice required or permitted to be given under the Agreement will be effective if it is in writing and sent by electronic methods, or by certified or registered mail, or insured courier, return receipt requested, to the appropriate party at the address of each party as specified in your Order Form 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 15.3. Notices are deemed given two (2) business days following the date of mailing or one business day following delivery to a courier.

15.4   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.

15.5   Governing Law and Litigation.  The laws of the State of Texas govern the Agreement 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 the Agreement exists exclusively in the federal or state courts in Travis County, Texas, 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 the Agreement is entitled to recover its costs, including reasonable attorney fees.

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

15.7   Waiver and Severability.  The waiver by either party of any breach of the Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation under the 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 the Agreement. If any part of the Agreement is unenforceable, the remaining portions of the Agreement will remain in full force and effect.

15.8   Drafting and Interpretation.  The parties have had an equal opportunity to participate in the drafting of the Agreement and the attached exhibits. No ambiguity will be construed against any party based upon a claim that that party drafted the ambiguous language. The headings appearing at the beginning of several sections contained in the Agreement have been inserted for identification and reference purposes only and must not be used to construe or interpret the Agreement. Whenever required by context, a singular number will include the plural, the plural number will include the singular, and the gender of any pronoun will include all genders.

15.9   Entire Agreement.  The Agreement, including any exhibits hereto, is the final and complete expression of all agreements between these parties and supersedes all previous oral and written agreements regarding these matters. The Agreement may be changed only by a written agreement signed by the party against whom enforcement is sought. The exhibits referred to in the Agreement are incorporated by this reference as if fully set forth here. There are no third party beneficiaries of the Agreement.

15.10 Counterparts and Electronic Execution.  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 electronic means and the parties agree that such electronic 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 electronic signatures as evidence of the execution and delivery of the Agreement by all parties to the same extent that an original signature could be used.

(Revised 2016)