Referral Program Agreement
This Referral Agreement (the “Agreement”) is entered into by and between LeaseMyMarketing, having its principal place of business at 94 Bethel Court, Port Matilda, PA 16870 (“Agency”) and you as a referrer of potential Qualified Customers to Agency (“Referrer”). This Agreement is effective from the date Referrer submits its LeaseMyMarketing Referral Program application (“Effective Date”).
Referrer must read, agree with and accept all of the terms and conditions contained in this Agreement to participate in the Agency’s Referral Program. BY CLICKING ON “SUBMIT” WHEN SUBMITTING THE APPLICATION TO THE AGENCY’S REFERRAL PROGRAM AND/OR BY PARTICIPATING IN THE AGENCY’S REFERRAL PROGRAM, THE REFERRERaqAGREES (1) TO ABIDE BY THE TERMS AND CONDITIONS IN THIS AGREEMENT, (2) THAT THIS ELECTRONIC AGREEMENT WILL BE LEGALLY BINDING ON REFERRER IN THE SAME WAY AS A WRITTEN AGREEMENT ONCE ACCEPTED BY THE AGENCY, AND (3) TO CONTRACT WITH AGENCY ELECTRONICALLY (INCLUDING MAINTAINING THIS AGREEMENT AS AN ELECTRONIC RECORD) AND THAT CLICKING ON THE “SUBMIT” BUTTON CONSTITUTES REFERRER’S LEGALLY VALID AND BINDING SIGNATURE.
Agency is a provider of online services, including software as a service (“Services”), and allows members of its referral program to market and refer customers to Agency in exchange for a commission (“Referral Program”). Referrer has submitted or will submit an application and desires to join the Agency Referral Program and introduce Agency to companies that are interested in purchasing Agency’s products and services in accordance with the terms of this Agreement and the LeaseMyMarketing’s Referral Program Guide attached hereto as Schedule 1 (“Referral Program Guide”). Accordingly, and for good and valuable consideration, and the mutual promises and covenants set forth below, which the parties acknowledge to be sufficient, the parties hereby agree as follows:
1. SCOPE OF ENGAGEMENT
1.1 This Agreement (including the Referral Program Guide) is binding on Agency and Referrer only after the Referrer’s application to the Agency’s Referral Program has been accepted and communicated to the Referrer in writing. Upon such written acceptance, this Agreement will be legally binding on the parties as of the Effective Date.
1.2. Subject to any restrictions set out in this Agreement and the Referral Program Guide, Referrer shall perform the following:
a. use its best efforts to identify Qualified Customers of Agency’s services and products (collectively, the “Services”), facilitate introductions to such Qualified Customers, and to only distribute marketing and promotional materials approved by Agency;
b. comply with the policies, standards, and procedures in the Referral Program Guide attached hereto as Schedule 1, (as may be updated from time to time), and that is incorporated herein by this reference as if fully set forth herein;
c. comply with all marketing and sales-related instructions, documents, and guidelines provided by Agency to Referrer from time to time;
d. only use those marketing materials supplied by Agency to Referrer to market and promote the Services, unless Agency expressly instructs Referrer to modify such materials for the purpose of targeting certain Qualified Customers and solely as permitted and instructed by Agency;
e. meet with Agency’s representatives to learn about new services and to discuss progress and/or support in the marketing of the Services and strategy to promote the sale of the Services to Qualified Customers;
f. refer all inquiries from a Qualified Customer to Agency, including those that indicate the desire to deal directly with Agency rather than Referrer, as provided in the Referral Program Guide; and
g. refer to Agency any post-sale inquiries from Qualified Customers in relation to the Services.
1.3 The Referral Program Guide will be applicable to Referrer’s performance and activities under this Agreement, and will be made available to Referrer within fifteen (15) days prior to the date compliance is required or from the date of its amendment.
2. COMMISSIONS AND PAYMENT
2.1 During the Term, for each Service sold to Qualified Customers, Agency agrees to pay to Referrer the commission percentage(s) from net revenue from such Qualified Customer for the applicable commission period (“Referral Fee”), in each case as set forth in Schedule 1.
2.2 Agency will only pay Referral Fees to Referrer for transactions under this Agreement that are made directly between the Qualified Customer and Agency i.e., Agency will not pay Referral Fees to Referrer for transactions involving a third-party sales intermediary.
2.3 Unless Referrer is in breach of its obligations under this Agreement (including the Referral Program Guide), and subject to Section 2.9(b), the Referral Fee shall be payable to the Referrer only for Qualified Customers that have paid Agency for the purchased Services during the Term or during the thirty (30) day period following the Term for Qualified Customer’s communicated to Agency prior to the expiration of the Term.
2.4 All Referral Fees shall be paid to Referrer within thirty (30) days of the end of the calendar quarter in which the Agency actually receives payment from the Qualified Customer for which the Referral Fee is due.
2.5 The Agency will not be responsible for any expenses of the Referrer in the course of the performance of its obligations hereunder unless such expenses have been previously approved in writing by the Agency.
2.6 To receive the applicable Referral Fees, Referrer must complete the Agency’s Referral Program application, submit the required tax documentation as set forth in the Referral Program Guide, and be accepted into the Referral Program by the Agency in writing.
2.7 All Referral Fees do not include taxes, levies, or duties (“taxes”) except where Agency is required to impose or withhold taxes under applicable law. Referrer is solely responsible for remitting all taxes associated with any Referral Fees paid to it under this Agreement. Referrer may be assessed sales tax unless Referrer provides a valid exemption certificate that indicates tax should not be applied to the Referral Fee. All amounts payable by Agency are subject to offset any amounts owed by Referrer to Agency.
2.8 All disputes related to Referral Fees must be submitted, in writing, to Agency within thirty (30) days of release of payment. Such disputes will be barred and forfeited if notice is not provided within this period. All disputes must be submitted with reasonable details to review the dispute.
2.9 Notwithstanding the foregoing or anything to the contrary in this Agreement (including the Referral Program Guide), Referrer may start referring Qualified Customer to Agency while the application is pending; provided, however, no Referral Fees will be due and paid to Referrer until Referrer completes the Referral Program application, has accurately completed and submitted the tax documents referred in the Referral Program Guide (see Section 1), and Referrer has been accepted to the Referral Program. If Referrer fails to submit or correct its application information, or fails to submit such tax documents as required hereunder, in each case for a period of thirty (30) days immediately following the date when Referrer initially submitted its application, then at Agency’s discretion, Referrer will not be entitled to receive a Referral Fee for any submitted Qualified Customer during such period, and Agency has no obligation to pay Referrer the associated Referral Fees.
2.10 Notwithstanding the foregoing, after the Referrer’s application is approved and Referrer is accepted into the Referral Program:
a. Referrer may be removed from the Referral Program (in Agency’s sole and exclusive discretion) without any liability to Agency if Agency does not receive from the Referrer a Qualified Customer lead within ninety (90) days from the date the Referrer was accepted into the Referral Program and this Agreement will terminate immediately upon notice;
b. Agency is not obligated to pay Referral Fees for Qualified Customers that do not make a purchase of a Service within six (6) months from the date such Qualified Customer was referred to Agency, in Agency’s sole discretion; and
c. If during the Term Referrer fails to refer a Qualified Customer lead within a period of twelve (12) months from the date of the last Qualified Customer referral submitted to Agency, and such Qualified Customer lead does not become a paying Customer of Agency, in Agency’s sole discretion, Referrer will not be entitled to receive any Referral Fees for any prior Qualified Customers, and such Referral Fees will be forfeited; provided, however, that if Referrer refers a Qualified Customer during a period of ninety (90) days after the end of such twelve (12) month period, and that Qualified Customer becomes a paying Customer of Agency, then Agency may reactivate Referrer’s participation in the Referrer Program and will receive Referral Fees for payments made by Referrer’s prior Qualified Customers for the applicable commission period remaining after the date of reactivation (i.e., payment received after the date of reactivation during the remaining commission period for such Qualified Customers).
3. QUALIFIED REFERRALS
3.1 This Agreement only applies to referrals made during the Term and resulting in a sale of Services by Agency to the Qualified Customer. Agency shall have thirty (30) days after receipt of a written identification from Referrer to inform Referrer that a particular business has already been introduced to Agency by another party or is an existing customer and/or prospect of Agency.
3.2 For purposes of this Agreement, a “Qualified Customer(s)” means a potential customer (or its affiliates) identified by Referrer to Agency, as provided in the Referral Program Guide, that (i) is not a current or previous customer or beneficial user of the Services, or (ii) has not previously communicated to Agency an interest in purchasing Agency’s Services (including through a person other than Referrer), or (iii) is not the Referrer or any subsidiary or affiliate of the Referrer;
3.3 Unless Referrer is in breach of its obligations under this Agreement, the Referral Fee shall be payable to the Referrer only for Qualified Customers that have paid Agency for the purchased Services during the Term or during the thirty (30) day period following the Term for Qualified Customer’s communicated to Agency prior to the expiration of the Term.
4. REPRESENTATIONS AND WARRANTIES
4.1 Referrer represents and warrants to Agency that:
a. Referrer’s performance of this Agreement will not violate or conflict with any agreement or arrangement it has in place with any third party;
b. If Referrer is a legal entity, the Referrer is an entity duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation, and that it has the requisite corporate power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder;
c. If Referrer is a natural person, Referrer is not restricted or prevented in any way from entering into this Agreement, and the Referrer has the requisite skills, power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder as legally binding obligations;
d. Referrer’s performance of its obligations in this Agreement (including the Referral Program Guide), and any Agency’s use of Referrer’s and Qualified Customer’s confidential, proprietary, and personal information provided by Referrer to Agency shall not infringe any third-party rights, including any rights of confidentiality, privacy, or intellectual property (“IP”) of a such third party (such as Qualified Customers);
e. its performance of this Agreement shall be provided in accordance with the terms of this Agreement and conform to the requirements of this Agreement, and shall be performed in a competent, timely, professional, and workmanlike manner;
f. Referrer shall comply and shall take all steps necessary to ensure that its personnel comply with all applicable laws, rules, and regulations.
4.2 Agency Representations and Warranties.
a. Agency represents and warrants to Referrer that Agency is an entity duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation, and that it has the requisite corporate power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder; and
b. the materials provided to Referrer by the Agency under this Agreement will not infringe any IP rights of a third party.
5. NON-POACHING OF CLIENTS AND TEAM MEMBERS
5.1 Non-Poaching of Clients:
During the term of this Agreement and for a period of two (2) years after its termination, neither Party shall, directly or indirectly, solicit or attempt to solicit any client or customer of the other Party with whom they became acquainted through the referral agreement or co-promotional activities, unless that client independently initiates the relationship.
5.2 Non-Poaching of Team Members:
During the term of this Agreement and for a period of two (2) years after its termination, neither Party shall, directly or indirectly, solicit, hire, or attempt to hire any employee, contractor, or team member of the other Party with whom they became acquainted through the business relationship without prior written consent.
5.3 Breach of Non-Poaching Clauses:
Any breach of this non-poaching clause will entitle the non-breaching Party to recover damages, including but not limited to the value of lost business, recruitment costs, 50% of team-member earnings for a six (6) month period, and any additional
losses caused by the breach.
6. TERM AND TERMINATION
6.1 Term: The initial term of this Agreement shall commence on the Effective Date and shall continue for a period of twelve (12) months (the “Initial Term”). The Initial Term will automatically extend for an additional twelve (12) month period (each, a “Renewal Term”) unless either party sends the other party a notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term, as the case may be. The Initial Term and any Renewal Terms shall be collectively referred to herein as the “Term.”
6.2 Termination: Either Party may terminate this Agreement for any reason with thirty (30) days' written notice to the other Party.
6.3 Effect of Termination: Upon termination, all outstanding referral fees owed shall be paid within thirty (30) days, and all co-marketing initiatives underway at the time of termination shall either be completed or mutually agreed upon for termination.
7. NON-EXCLUSIVITY AND RESTRICTIONS
7.1 Referrer acknowledges and agrees that Agency is appointing Referrer under this Agreement on a non-exclusive basis.
7.2 Nothing in this Agreement authorizes Referrer to perform any activities or services on behalf of Agency except to the extent expressly permitted under this Agreement. Without limiting the foregoing, Referrer shall not:
a. in any way represent itself to be Agency, agent of Agency, or otherwise permitted to bind Agency to a sale or any other legal obligation;
b. knowingly approach any existing Agency’s customers to market any Service;
c. engage in any direct digital marketing (email or short messaging services) conduct in the name of, or on behalf of, Agency;
d. represent, designate, or otherwise pass itself or any of its subsidiaries or affiliates as a Qualified Customer;
e. incur any liabilities on behalf of Agency, or create or assume any obligation on behalf of Agency;
f. make any representation, warranty, guaranty, or promise in any matter in relation to Agency or the Agency’s Services on behalf of Agency, or otherwise attempt to bind Agency to any such representation, warranty, guaranty or promise;
g. modify any materials provided to Referrer without Agency’s express written consent;
h. quote, offer any discount to, or represent that the prices of the Services are anything except as communicated by Agency;
i. do or assist in anything which may prevent or adversely affect the sales of the Services or other Agency products or services;
j. provide or display any marketing or promotional material for the Services other than that supplied by Agency or material which Agency has pre-approved in writing (but such material may only be used to the extent approved by Agency);
k. perform any act purporting to have or do anything that would portray Referrer as having the authority (apparent, ostensible, or otherwise) to consummate the sale of the Service;
l. make any criticism or negative comment that would portray Agency or its products in a negative light; or
m. expressly or impliedly do anything which may suggest to any third party that Referrer is authorized to perform any activities or services beyond those permitted in this Agreement.
8. PURCHASE PROCESSING
8.1 The parties acknowledge and agree that Agency (not Referrer) shall enter into a contract with each Qualified Customer in respect of the terms and conditions governing Agency’s supply of the Services and the Qualified Customer’s receipt and use of the Services.
8.2 Referrer shall:
a. distribute Agency’s materials to potential or Qualified Customers in accordance with this Agreement and Agency’s instructions; and
b. keep complete and accurate records of matters relating to Qualified Customer referred to Agency during the Term and the twenty-four (24) month period thereafter, which shall be provided to Agency upon request;
8.3 All completed purchases by Qualified Customers will be reviewed by Agency and are subject to rejection by Agency in its sole and exclusive discretion. Agency shall be solely responsible for:
a. fulfilling any purchase orders from Qualified Customers for the Services;
b. issuing invoices to Qualified Customers for Services; and
c. collecting payment from Qualified Customers for the Services.
9. INTELLECTUAL PROPERTY
9.1 As between the parties, each party is and shall remain the sole and exclusive owner of all right, title, and interest in and to its IP. Each party acquires no rights to any of the other party’s background IP under this Agreement except for the limited rights specifically and expressly granted by this Agreement.
9.2 “Agency Material” means any materials, data, information, or technology (including any applications, methodologies, templates, tools, ideas, processes, procedures, practices, specifications, requirement documents, software, reports, guides, diagrams, techniques, marketing materials, and training materials) provided to Referrer by or on behalf of Agency under this Agreement, any derivative works of, modifications, updates, enhancements, or improvements to the foregoing, whether made by or on behalf of Agency or Referrer, and any IP therein. As between the parties, Agency is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Agency Materials, including any IP therein and thereto. Referrer acknowledges and agrees that it does not acquire any rights to the Agency Material except for the limited license expressly granted by this Agreement.
9.3 “Feedback IP” means any IP in and to any ideas, feedback, and suggestions provided by Referrer and its employees to Agency and its affiliates, including any outputs, data, processes, documentation, or other materials, during the performance of its obligations under this Agreement, including all information and marketing materials in reports delivered to Agency by Referrer in connection with this Agreement whether alone or jointly with Agency. Agency shall own all worldwide right, title, and interest in and to the Feedback IP, and Referrer shall not have any right, title, or interest in the Feedback IP. Referrer further acknowledges that all Feedback IP shall be considered work-made-for-hire by Referrer for Agency, and Agency shall then own all United States and international copyrights in the Feedback IP. Without limiting the foregoing, to the extent otherwise necessary to perfect Agency’s ownership therein, Referrer hereby assigns and agrees to assign [and shall ensure that its personnel assign] to Agency all worldwide right, title, and interest in and to any and all Feedback IP, and Referrer shall [and shall procure that its personnel] execute such documents and take such lawful actions as Agency may request, at Agency’s reasonable expense, to evidence and perfect the above assignment and to secure all worldwide IP rights and protections with respect to such Feedback IP. All Feedback IP will be deemed Agency Materials upon their delivery or communication to Agency.
9.4 Agency hereby grants and agrees to grant to Referrer a non-exclusive, non-assignable, non-transferable, non-sublicensable, and fully paid-up license to use Agency Materials solely to the extent necessary to perform Referrer’s obligations under this Agreement.
9.5 Nothing in this Agreement grants Referrer a right to use Agency’s name, trademarks, or logos, promotionally or otherwise, without Agency’s prior written consent, including any press releases or website displays, except that Referrer may use Agency Materials that contain Agency’s name, trademarks, or logos in accordance with the license grant and limitations under this Agreement.
10. CONFIDENTIALITY
The Parties agree to maintain the confidentiality of any proprietary or confidential information disclosed during the term of this Agreement and for five years after the termination of the agreement. This includes, but is not limited to, client lists, pricing structures, and marketing strategies, etc.
11. INDEMNIFICATION
Each Party agrees to indemnify, defend, and hold harmless the other Party from and against any and all claims, liabilities, damages, and expenses (including reasonable attorney's fees) arising out of any breach of this Agreement by the indemnifying Party.
12. LIMITATION OF LIABILITY
12.1 SUBJECT TO SECTION 12.2 AND SECTION 12.3, ANY CLAIM BY A PARTY AGAINST THE OTHER PARTY WILL BE LIMITED TO THE REFERRAL FEES DUE AND PAYABLE UNDER THIS AGREEMENT FOR THE PERIOD OF [TWELVE (12) MONTHS] PRIOR TO THE DATE IN WHICH SUCH CLAIM AROSE.
12.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT AND SUBJECT TO SECTION
12.3 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE PARTIES SHALL NOT BE LIABLE TO EACH OTHER FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION, LOSS OF PROFIT, REVENUE, ANTICIPATED SAVINGS, BUSINESS TRANSACTIONS, OR GOODWILL OR OTHER CONTRACTS WHETHER ARISING FROM NEGLIGENCE OR BREACH OF CONTRACT.
12.4 THE LIABILITY LIMITATIONS AND EXCLUSIONS IN THIS SECTION 14 WILL NOT APPLY, AND WILL HAVE NO LEGAL FORCE OR EFFECT, TO ANY LOSSES, DAMAGES OR CLAIMS RELATED TO BREACH OF IP, CONFIDENTIALITY, INDEMNIFICATION UNDER THIS AGREEMENT, OR CAUSED BY THE NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD OF THE OTHER PARTY.
13. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with the laws of the State of Pennsylvania. In the event of any dispute arising under this Agreement, the Parties agree to first attempt mediation. If mediation fails, the dispute shall be resolved in the courts of Pennsylvania.
14. ENTIRE AGREEMENT
This Agreement constitutes the entire understanding between the Parties regarding the subject matter hereof and supersedes all prior agreements, negotiations, and understandings, whether written or oral.
15. AMENDMENTS
Any amendments to this Agreement must be in writing and signed by both Parties.
16. SEVERABILITY
If any provision of this Agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.
17. MISCELLANEOUS
17.1 Agency may at any time novate, assign, or transfer in whole or in part its rights and obligations under this Agreement to an affiliate, subsidiary, or creditor of Agency. To the extent necessary, Referrer hereby consents to such novation, assignment, or transfer.
17.2 Referrer may not novate, assign, or transfer in whole or in part any of its rights or obligations under this Agreement without the prior written consent of Agency.
17.3 Referrer shall not subcontract any of its obligations under this Agreement.
17.4 The parties will be deemed to be independent contractors. Nothing in this Agreement shall create any legal partnership, joint venture, agency, franchise, employment relationship or any other relationship between the parties beyond the relations set out in this Agreement.
17.5 If any section or part of any section is held by a court to be invalid or unenforceable, that section or part of a section is to be regarded as having been deleted from this Agreement, and this Agreement otherwise remains in full force and effect.
17.6 All notices and any other communications whatsoever (including, without limitation, an approval, consent, demand, query, or request) by either party in terms of this Agreement or relating to it shall be given in writing, and shall be sent by registered post, or delivered via email to the recipient party at its relevant address set out in the Referral Program Guide.
17.8 Except as otherwise specified herein, this Agreement constitutes the entire agreement between Agency and Referrer, superseding any prior or contemporaneous oral or written agreements between the parties with respect to the Referral Program and the Services available under the Program.
17.9 The Agreement and all of its provisions may not be amended or waived unless agreed upon in writing signed by the parties hereto.