This Affiliate Referral Agreement (the “Agreement”) is made and entered into between Pressable, Inc. (“Company”) and you (“Affiliate“).
Affiliate wishes to refer potential opportunities with customers to Company, and Company is willing to compensate Affiliate for such referrals, on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and other valuable consideration, the receipt and sufficiency of which are acknowledged, Company and Affiliate agree as follows:
1.1. “Commission Period” means, unless terminated earlier in accordance with Section 8.5 (a) of this Agreement, the period commencing on the date that a prospective customer becomes a Customer (the “Customer Commencement Date”) until the later of the date that is thirty six (36) months from (a) the Customer Commencement Date and (b) each date that Customer has become a subscriber to an upgraded Product.
1.2. “Customer” means a Qualified Prospect who has agreed to the Terms available at https://pressable.com/legal/terms-of-service/ and has purchased a plan.
1.3. “Products” The products and services currently available from Company as listed at Company’s website at http://www.pressable.com/pricing, as changed, discontinued, added to or updated from time to time by Company in its sole discretion.
1.4. “Promotional Materials” means the graphic or textual materials provided by Company (if any) for use by the Affiliate in connection with the promotion of the Products and the Company.
1.5. “Qualified Prospect” means a potential customer that meets the requirements set forth in Section 4.2 and is accepted by Company.
1.6. “Submission Date” means the date that Affiliate has completed and submitted to Company the applicable Referral.
1.7. “Subscription Fees” means the fees paid by a Customer for a subscription for access and use of any of the Products, excluding amounts paid for sales, value-added or use taxes, insurance, set-up, support and any other similar items.
1.8. “Terms” means Company’s terms and conditions for the subscription and use of the Products.
2. General Responsibilities
2.1. The primary objectives of this relationship are for (a) Affiliate to identify potential customers for the Products, (b) Affiliate to provide the potential customers with information about Company and its Products, (c) Affiliate to identify Qualified Prospects to Company, and (d) Company to compensate Affiliate in accordance with Section 5 for Qualified Prospects.
2.2. Company hereby grants to Affiliate a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the termination of this Agreement. Affiliate may not use any graphic, textual or other materials to promote the Products or Company, unless Company agrees to such other materials in writing prior to their use. Affiliate may only use the Promotional Materials for the purpose of promoting the Services and Company. Affiliate will not alter, add to, subtract from, or otherwise modify the Promotional Materials as originally prepared by Company without the prior written consent of Company. Affiliate will not remove, deface or alter any Company trademarks or other designations affixed to the Promotional Materials by Company.
2.3. Company grants to Affiliate a limited right to use, during the term of this Agreement, accurate representations of Company’s name, logo and other trademarks used by Company (the “Trademarks”) with respect to the Promotional Materials and Products for all proper purposes in connection with promoting the Products and Company under this Agreement.
2.4. In all its actions and activities relating to this Agreement, Affiliate will clearly indicate that it is acting as an independent contractor under this Agreement and not as an employee or agent of Company, or as a distributor or reseller of Products. Affiliate shall refer all requests to subscribe to Products directly to Company.
2.5. The parties agree that Company is responsible for establishing prices and terms for the Products with prospective customers.
2.6. Each party shall be responsible for all of its costs and expenses incurred in performance of its obligations under this Agreement. The relative split of shared costs (if any) shall be determined in advance as mutually agreed in writing by the parties.
2.7. Company and Affiliate agree that the relationship between the parties is non-exclusive and neither party shall be required to recommend the other party’s products or services to their customers.
2.8. Affiliate will comply with all applicable laws and regulations and shall obtain and maintain all registrations, licenses, permits, certificates or approvals with governmental agencies, commercial registries, chambers of commerce, or other offices required to conduct its business and to perform its obligations under this Agreement.
2.10. Except in direct conversations with potential customers in connection with the promotion of the Products and Company under this Agreement, Affiliate shall not (a) use the Trademarks in advertising, publicity, or otherwise or (b) announce the existence or terms of this Agreement without the prior written consent of Company, which consent shall not be unreasonably withheld.
2.11. At Company’s request, Affiliate shall introduce Company sales or other representatives to the appropriate contacts at the Qualified Prospect.
3. Company Responsibilities
3.1. Company will make available, the Promotional Materials and other updated Product information via its website to help Affiliate remain current with respect to the Product offerings.
3.2. Company will support Affiliate’s efforts in connection with this Agreement and the Products by providing access to the Promotional Materials and other documentation and product functions and benefits via its website.
3.3. Company shall offer Affiliate technical training for the Products, as applicable, from time to time upon reasonable request from Affiliate at the Company’s then-current charges for such training. Company will also provide the administrative support necessary to process, qualify and make payments for referrals in accordance with the terms of this Agreement.
4. Prospect Qualification
4.1. Affiliate shall refer any potential customers to Company (a “Referral”) through an online form provided by Company to Affiliate, which Affiliate shall fully complete and submit to Company. Final determination as to whether a potential customer qualifies as a Qualified Prospect rests with Company in its sole discretion.
4.2. To qualify as a Qualified Prospect, the potential customer must (a) represent an opportunity that has not been previously identified or contacted by Company directly or through its other distribution and representation channels (including any other affiliates or agents), (b) not have been in discussions or other contact with Company within ninety (90) days of the Submission Date, (c) become a subscriber of one of the Products within ninety (90) days of the Submission Date without receiving any monetary or other incentive from Affiliate, (d) have paid the Subscription Fees covering at least two (2) months for access and use of the Products (either as part of an annual payment or 2 separate monthly payments) and (d) otherwise meet any other criteria (e.g., credit worthiness, etc.) required by Company for new customers. A Referral shall be deemed rejected by Company if the potential customer has not subscribed to one of the Products within ninety (90) days of the Submission Date; provided that on a case by case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend such 90 day period for a particular Referral.
5. Commissions and Payments
5.1. During the Commission Period, Company shall pay Affiliate a commission based on the aggregate Subscription Fees actually received by Company during the previous month for the Product, as its entire compensation for all Qualified Prospects.
Company reserves the right in its sole discretion to periodically change the applicable Amounts for new and existing Customers covered by this Agreement, upon prior written notification thereof to Affiliate. Any such new amounts shall be applicable to all Commissions to be paid commencing ninety (90) days after the date of such notification. A new Exhibit A specifying the new amounts shall be prepared by Company, sent to Affiliate and shall be incorporated into and be considered a part of this Agreement.
5.2. The Commission shall apply only to Qualified Prospects that have been solicited solely by Affiliate and accepted by Company.
5.3. Unless otherwise approved by Company, all payments made pursuant to this Agreement will be calculated and paid in United States Dollars. The Commissions shall be paid to Affiliate within ninety (90) days of the end of the calendar month based on the aggregate Subscription Fees actually received by Company during the previous month. If for any month the total Commissions accrued and payable to Affiliate are less than $50.00, then such accrued and payable balance shall be held over to the next subsequent month when the total Commissions accrued and payable to Affiliate is at least $50.00.
5.4. Company shall have the right to charge back to Affiliate’s account or reduce any future Commissions for any amounts previously paid or credited to it as a result of any adjustments or cancellations regarding any of the Subscription Fees or Products, such as for fraud or credit card chargebacks.
5.5. Company shall keep reasonably accurate and up-to-date records of the data used to determine the total amount of Commissions owed to Affiliate. Affiliate (or its agent) may, at its expense and not more than once in any twelve (12) month period, have reasonable access to review these records during normal business hours upon no less than five (5) business days’ prior written request. Any discrepancy between the amount of Commissions owed according to these records, and the actual amount of Commissions paid to Affiliate in any period or periods shall be rectified by Company within fourteen (14) days of discovering such discrepancy, unless less than the $50 minimum balance as explained in section 5.3. Company has final authority to resolve disputes regarding Commissions. Company must act in good faith and using its reasonable judgment, taking into account standard industry practices.
5.6. Company shall not be responsible for any taxes owed by Affiliate arising out of or related to any Referrals or this Agreement. Unless required by law, Company shall not withhold any taxes from the Commissions paid to Affiliate.
6. Representations and Warranties; Ownership
6.1. Each Party represents and warrants to the other that: (a) it is an entity duly organized and validly existing under the laws of its jurisdiction of organization; (b) it is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Agreement; (c) it has all necessary power and authority to negotiate, execute, deliver and perform its obligations under this Agreement; (d) this Agreement constitutes a valid and binding obligation, enforceable against such Party in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy and other similar laws affecting the rights and remedies of creditors generally; (e) it is not a party to, subject to or bound by any agreement or any statute, law, rule, regulation, judgment, order, writ, injunction, or decree of any court, administrative or regulatory body, governmental agency, arbitrator, mediator or similar body, franchise or license, that would (i) conflict with or be breached or violated by the execution, delivery or performance by it of this Agreement or (ii) prevent the carrying out of the transactions contemplated by this Agreement; and (f) it will not engage in the distribution of any unsolicited bulk emails (spam) or any other harassing behavior in any way mentioning or referencing the other or the other’s website.
6.2. Company retains all right, ownership, and interest in the Promotional Materials, the Products and its website, and in any copyright, trademark, or other intellectual property in the Promotional Materials, the Products and the website. Nothing in this Agreement shall be construed to grant Affiliate any rights, ownership or interest in the Promotional Materials, the Products or the website, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License or the Trademarks as set forth in Section 2.3.
7.1. The parties acknowledge that during the term of this Agreement, each party may provide the other party confidential information. The term “Confidential Information” shall mean any and all information that is disclosed by either party to the other in a tangible or intangible form which is either identified or should be reasonably understood to be confidential or proprietary. Confidential Information includes, but is not limited to, trade secrets, ideas, processes, programs, source code, formulas, materials, software, substances, sources of supplies, technology, research, know-how, improvements, discoveries, developments, designs, inventions, techniques, marketing plans, strategies, forecasts, new products, unpublished financial statements, budgets, projections, prices, costs, and customer lists.
7.2. Both parties shall keep Confidential Information in strict confidence and shall not disclose it to any third party. Both parties shall only use Confidential Information in a manner consistent with the terms of this Agreement and only in furtherance of the mutually beneficial relationship between the parties. Affiliate’s internal disclosure of Confidential Information shall only be to those employees or agents having a need to know such information in connection with this Agreement and only if such persons are bound by a nondisclosure agreement that is no less restrictive than set forth in this Section 7. A party shall promptly notify the other of any unauthorized disclosure or use of Confidential Information by any person.
7.3. Notwithstanding the provisions of Subsection 7.1. Confidential Information shall not include any information or material that is: (a) already in the possession of the receiving Party, its subsidiaries, employees or agents without prior restrictions; (b) independently developed by the receiving Party, its subsidiaries, employees or agents; (c) publicly disclosed by the disclosing Party or others who are not subject to any confidentiality restrictions with the disclosing Party; or (d) made available by the disclosing Party, its subsidiaries, employees or agents to others without restriction. Further, the receiving Party may disclose Confidential Information pursuant to a valid order issued by a court or government agency or as otherwise required by law, provided that (a) the receiving Party provides the disclosing Party with prior written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order; (b) the receiving Party only discloses such Confidential Information as is required to comply with such order or law and (c) no such disclosure shall otherwise exempt such Confidential Information from being treated as confidential under this Agreement. The obligations under this Agreement with respect to Confidential Information shall continue for a period of three (3) years from the date of each disclosure and shall survive the termination of this Agreement.
7.4. Affiliate agrees (a) that it will not attempt to decompile or disassemble any of the Products or otherwise engage in reverse engineering of the Products and (b) to use all reasonable endeavors to ensure that its employees and agents observe this Section 7.4.
8. Term and Termination
8.1. This Agreement shall take effect on the Effective Date and shall continue for a period of one (1) year following the Effective Date unless terminated earlier as provided in this Section 8. After the initial term, this Agreement shall renew for additional terms of one year each, unless either party notifies the other no less than thirty (30) days prior to the end of the then-current term that it does not wish to renew the Agreement.
8.2. This Agreement may be terminated by mutual written agreement of the parties, or upon thirty (30) days written notice by either party, for convenience.
8.3. This Agreement may be terminated at any time by the non-breaching Party upon any material breach of this Agreement which is not cured within thirty (30) days after written notice of such breach.
8.4. This Agreement shall terminate, without notice, upon (i) the institution by or against Affiliate of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of Affiliate’s debts, (ii) Affiliate’s making an assignment for the benefit of creditors, (iii) the insolvency of Affiliate or its ceasing to conduct business in the normal course, or (iv) Affiliate’s dissolution.
8.5. Upon termination of this Agreement for any reason: (a) Affiliate shall only be entitled to Commissions accrued prior to the effective date of termination. Thereafter, no additional Commissions shall be paid to Affiliate even if a Qualified Prospect continues to be a Customer. No residual Commissions of any sort shall be due to Affiliate or to any of Affiliate’s successors and assigns whether or not accrued or approved by Company, in the event of termination under Section 8.3 or 8.4; and (b) each party shall return to the other (or certify destruction of) all Confidential Information within five (5) business days of termination; provided that the receiving Party may retain one (1) copy of the disclosing Party’s Confidential Information for administrative purposes so long as it continues to be treated as confidential under the terms of Section 7.
8.6. Sections 7, 9 and 10 shall survive any termination of this Agreement.
9. Warranty, Indemnification and Limitations
9.1. Warranty. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED,TO THE OTHER OR ANY THIRD PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE PRODUCTS, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE PRODUCTS WILL MEET ANY CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES (EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose.
9.2. Indemnification. Affiliate agrees to indemnify and hold Company and its officers, directors, employees and agents harmless from and against, and assumes complete responsibility for all third party suits, actions, claims, losses, judgments, damages, costs and expenses arising in connection with Affiliate’s performance under the Agreement including: (a) Affiliate’s breach or default under this Agreement; (b) the solicitation of potential customers by Affiliate; or (c) the negligence, misrepresentation, error or omission on the part of Affiliate relating to or concerning Company, the Products or this Agreement.
9.3. Limitations. EXCEPT FOR THE GROSS NEGLIGENCE OF WILLFUL MISCONDUCT OF A PARTY, ANY BREACH OF SECTION 7 OR THE MISAPPROPRIATION OF INTELLECTUAL PROPERTY, NEITHER PARTY WILL BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY’S LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE EXCEED THE MONEY PAID TO COMPANY FOR THE PRODUCTS GIVING RISE TO THE LIABILITY UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT DURING THE ONE (1) YEAR PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
10. Arbitration Agreement
Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under the Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce the Agreement shall be entitled to costs and attorneys’ fees.
11.1. The parties are independent contractors under this Agreement and nothing in this Agreement (a) shall be construed to create a partnership, joint venture or agency relationship between the parties hereto, (b) authorizes a party to act as an agent of the other or bind the other to any transaction, or (c) provides a party with express or implied authority to act on behalf of the other party.