Definitions.

1. 1. “Company Marks and Materials” means the Company’s trademarks, service marks, logos, and other marketing materials provided by Company to Partner for use in connection with this Agreement.
   2. “Initial Order” means the Prospect’s initial order to purchase Product(s).  
   3. “Net Revenue” means gross revenues less refunds, chargebacks and payment processing fees.
   4. “Products” means the Company products and services specified in the table in Section 4 below for which Partner will refer potential sales leads to Company.
   5. “Prospects” means new Company customers introduced by Partner and accepted by Company using the Referral Process.
   6. “Referral Fees” means the referral fees specified in the table in Section 4 below which Company will pay to Partner for sales of Products to Prospects.
   7. “Referral Fee Window” means the first twelve (12) months after the Prospect’s Initial Order.
   8. “Referral Process” means the method for Partner to refer potential Prospects as set forth in Section 2.

Referral Process.  

Partner may refer potential customers to Company at any time during the term of this Agreement as mutually agreed by the parties, which may include the use of a unique link or phone number, and/or pre-approved customer names or lists.

Eligibility.  

Only new customers introduced to and accepted by Company using the Referral Process shall be considered eligible Prospects for the purpose of this Agreement.  Referrals that have previously been contacted by Company and current Company customers are not eligible as Prospects.  Company may refuse service to any potential customer for any reason.  

Products and Referral Fees. For purchases of Products by Prospects that occur during the term of this Agreement, Company will pay Partner the referral fee percentages, specified in the table below, of Net Revenue received by Company from the Prospect during the Referral Fee Window for Products purchased on the Initial Order.

Payment and Accounting.  

Company shall pay Partner the collective amount due under Section 4 within thirty (30) days, upon receipt of invoice from Partner, after the end of each calendar month for all Referral Fees earned during the prior calendar month. The initial referral payment will be made ninety (90) days after the customer billing start date. No referral payments will be issued if the customer cancels within the ninety-day window stated above.  Payments will be made by check or wire transfer.

Use of Company Marks and Materials. 

Subject to the terms and conditions of the Agreement, Company grants to Partner a non-transferable, non-exclusive license to use the Company Marks and Materials to promote the relationship established by this Agreement, market the Products and as otherwise reasonably necessary to perform its obligations set forth in this Agreement.  Partner’s use of Company Marks and Materials will be subject to Company’s then-current use guidelines.  Partner shall promptly provide Company with samples of all materials that use the Company Marks and Materials for Company’s quality control purposes and Company may terminate the use of the Company Marks and Materials, in whole or in part, if it considers Partner’s use not to conform to Company’s use guidelines. Except as provided herein, nothing contained in this Agreement shall be construed to grant to Partner any right, title, or interest (including all intellectual property rights therein) in or to the Company Marks and Materials, which shall be retained by Company.

Partners Obligations and Restrictions.  

When seeking referrals and otherwise performing under this Agreement, Partner will (a) not engage in any deceptive, misleading, illegal, or unethical practices; (b) not make any representations or warranties concerning the Company’s products and services, except as set forth in printed marketing collateral or documentation furnished by Company; (c) comply with all applicable federal, state, and local laws and regulations including, without limitation, the CAN-SPAM Act of 2003, as amended, and all applicable privacy regulations; and (d) not refer any prospective referrals to a licensor or supplier of products or services that provide functionality that competes with or is similar to the functionality of the Products, except if the prospective referral expressly rejects Partner’s referral to Company.  Partner will indemnify and defend Company from and against all damages, liabilities, costs, and expenses, including attorneys’ and experts’ fees and expenses, that Company may incur as the result of any action brought against Company and arising out of the acts of Partner or its agents in breach of this Section.

Confidentiality. 

Each Party acknowledges that it may receive valuable trade and business secrets and other proprietary and confidential information, including, without limitation, information about the other Party’s business, products, equipment, systems, techniques and practices (collectively,  “Confidential Information“) (for purposes of this Section, a Party receiving Confidential Information shall be referred to as a “Receiving Party” and a Party disclosing Confidential Information shall be referred to as a “Disclosing  Party“). Except as otherwise required by law, the Receiving Party shall not, and shall cause each of its directors, officers, employees, agents and representatives (collectively, “Representatives”) not to (i) disclose the Confidential Information to any person or entity other than Representatives of the Receiving Party that (a) need to know the Confidential Information for the purposes contemplated by this Agreement, and (b) agree to be bound by the provisions of this Section or are bound by an obligation of confidentiality that protects the Confidential Information to at least the same extent as this Agreement, or (ii) use the Confidential Information for any purpose other than the purposes contemplated by this Agreement. Disclosure of Confidential Information will not be precluded by this Agreement if such disclosure is (a) necessary to establish rights under this Agreement, or (b) required by law or regulation; provided, however, that prior to disclosure under clause (b), the Receiving Party shall notify the Disclosing Party of such disclosure and make a good faith attempt to obtain a protective order prior to such disclosure.   Promptly upon the written request of the Disclosing Party, the Receiving Party shall, and shall cause its Representatives to, return to the Disclosing Party or destroy all Confidential Information. If the Receiving Party destroys the Confidential Information, it shall certify that it has done so in writing and promptly deliver that certificate to the Disclosing Party.

Term and Termination. 

The initial term of this Agreement shall last twelve (12) months from the Effective Date and shall automatically renew for additional twelve (12) month periods unless terminated in writing by either Party at least thirty (30) days prior to the end of the then-current term.  In addition, either Party may terminate this Agreement, with or without cause, upon thirty (30) days notice.  Termination by either Party does not terminate, limit, or restrict the rights and remedies of the other Party. Upon any termination or expiration of this Agreement, all licenses granted hereunder, including without limitation Referrals Agent’s license to the Company Marks and Materials, shall terminate and Partner will refrain from marketing and promoting the Products or representing itself as a referral representative of Company.  Each Party will either return to the other Party or destroy any Confidential Information of the other Party in its possession. Partner will remain eligible for any potential Referral Fees due to Partner pursuant to Section 4 for eligible purchases that occurred prior to termination. Partner acknowledges and agrees that Company will incur no liability whatsoever for any damage, loss, or expenses of any kind suffered or incurred by the Partner arising from, or incident to, any termination of this Agreement by Company or any expiration hereof that complies with the terms of the Agreement.  Sections 7 through 18 shall survive any expiration or termination of this Agreement.

Disclaimer of Warranties.

COMPANY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS REGARDING THIS AGREEMENT OR THE PRODUCTS.  ANY WARRANTIES REGARDING THE PRODUCTS WILL BE MADE BY COMPANY DIRECTLY TO THE CUSTOMER PURSUANT TO THE COMPANY’S STANDAND LICENSING AGREEMENT OR AS OTHERWISE AGREED IN WRITING BETWEEN THE CUSTOMER AND COMPANY.

Limitation of Liability. 

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, (I) NEITHER PARTY WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS OR GOODWILL, EVEN IF SUCH PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING AND (II) UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED $10,000.  The foregoing limitations will not apply to liability resulting from a breach of Sections 7 or 8.

Relationship of the Parties.  

The Parties are independent contractors.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Neither Party shall make any contract, commitment, warranty, or representation on behalf of the other Party, or incur any debt or other obligation in the other Party’s name, or act in any manner which has the effect of making that Party the apparent agent of the other; and neither Party shall assume liability for, or be deemed liable hereunder as a result of, any such action by the other Party.  Company’s appointment of Partner is not exclusive and Company may appoint other third parties to perform similar functions.

Assignment.  

Neither Party may assign this Agreement or the rights and obligations contained herein without the prior written consent of the other Party, provided that either Party may assign this Agreement, in whole and without the prior written consent of the other Party, in the event of a merger, acquisition, or the sale of all or substantially all of such Party’s assets or the specific business line that is the subject of this Agreement.

Force Majeure.  

Neither Party hereto shall be responsible for any failure to perform its obligations under this Agreement if failure is caused by acts of nature, war, strikes, failure of the Internet, revolutions, lack or failure of transportional facilities, laws or governmental regulations or other causes which are beyond the reasonable control of such Party.

Severability and Construction. 

If any provision of this Agreement is held invalid as written, the remainder of this Agreement will continue in full force and effect and the invalid provision will be deemed modified so as to be enforceable to the maximum extent permitted by applicable law. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section, or in any way affect this Agreement. The Parties have participated jointly in the negotiation and drafting of this Agreement and each Party has had the opportunity to review this Agreement with its attorney.  Accordingly, if an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.  

Notice. 

Any notices required or permitted hereunder shall be given to the appropriate Party at the address specified on the first page of this Agreement or at such other address as the Party shall specify in writing. Unless otherwise specified, such notice must be in writing and must be delivered by a method providing for proof of delivery.  Any notice or request shall be deemed to have been given on the date of receipt.

Governing Law and Venue.

Any claim, dispute or controversy of whatever nature (“Claim”) arising out of or relating to this Agreement shall be resolved by final and binding arbitration.  The arbitration shall be conducted by and submitted to a single arbitrator (“Arbitrator”) selected from and administered by the San Francisco, California office of JAMS (“JAMS”), in accordance with its then-existing Comprehensive Arbitration Rules & Procedures.  Upon the written demand of any Party to the arbitration, the arbitration shall be conducted by and submitted to three Arbitrators from JAMS under the same rules.  The arbitration hearing shall be held in San Francisco, California.  This Agreement shall be governed by and construed under the laws of the state of California, consistent with the Federal Arbitration Act, without reference to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. The Arbitrator(s) shall be authorized to award compensatory damages, but shall NOT be authorized to award non-economic damages, such as for emotional distress, or pain and suffering or punitive damages.  Each Party shall bear its own attorneys’ fees, cost and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the Arbitrator(s) and JAMS; however, the Arbitrator(s) shall be authorized to award to the prevailing Party reimbursement for its reasonable attorneys’ fees and costs (including, for example, expert witness fees and travel expenses), and/or the fees and costs of the Arbitrator(s).  Within fifteen (15) calendar days after the conclusion of the arbitration, Arbitrators shall issue a written award and a written statement of decision describing the material factual findings and conclusions on which the award is based, including the calculation of any damages awarded.  Each Party shall fully perform and satisfy the arbitration award within 15 days of the service of the award.  Judgment on the award may be entered by any court of competent jurisdiction.  By agreeing to this binding arbitration provision, the parties understand that they are waiving certain rights and protections which may otherwise be available if a Claim were determined by litigation in court, including, without limitation, the right to seek or obtain certain types of damages precluded by this arbitration provision, the right to a jury trial, certain rights of appeal, the right bring a claim as a class member in any purported class or representative proceeding; and a right to invoke formal rules of procedure and evidence.

Entire Agreement, Modification and Waiver. This Agreement is the entire Agreement between the Parties pertaining to the subject matter hereof, and it supersedes any prior oral or written agreements, commitments, understandings, or communications with respect to the subject matter hereof. This Agreement may not be modified except by a written amendment expressly referencing this Agreement and signed by a duly authorized officer of each Party.  No right or remedy of either Party under this Agreement shall be deemed waived unless such waiver is in writing and signed by a duly authorized officer of the waiving Party.