Referral Fee Agreement
This Referral Fee Agreement (this “Agreement”) dated as of the date set forth on the signature page hereto (the “Effective Date”), is entered into by and between R.E. Data Lab, a Nevada corporation (the “Company”) and the person listed on the signature page hereto (the “Service Provider”).
WHEREAS, the Company owns proprietary technology that is offered to its real estate investor and broker customers via a SaaS model through its website, www.GetPrivyNow.com (the “Privy Website”);
WHEREAS, Service Provider maintains a brand identification and reputation among real estate professionals; and
WHEREAS, the Company desires to engage Service Provider to market and promote the Company and the Privy Website and to refer potential customers to the Privy Website.
NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
Section 1. Services. The Company hereby engages Service Provider to provide, and Service Provider hereby accepts such engagement and undertakes to provide or cause to be provided to the Company, on a non-exclusive basis, the services specified in this Agreement during the Term.
Section 2. Term and Termination.
(a) The term of this Agreement (the “Term”) will begin on the Effective Date and will end on the first anniversary of the Effective Date, provided that this Agreement shall automatically renew for additional one (1) year periods thereafter until terminated by either party. The Company or the Service Provider may terminate this Agreement at any time, with or without cause, via written notice of termination to the other party. Except in the case of any termination of this Agreement by the Company for cause (which, for the avoidance of doubt, will apply to any termination by the Company pursuant to Section 8(b) or Section 9(b)), following the termination or expiration of the Term, Service Provider shall continue to be entitled to receive the Referral Fees during the Referral Fee Period, payable in accordance with Section 6 herein, provided that Service Provider was not in default or breach under the Agreement at the time of termination or expiration of the Term and, at the time of payment, Service Provider is not then in breach or default of any provisions of this Agreement that by their terms, survive the termination or expiration of the Term.
(b) The Company reserves the right to terminate this Agreement, without notice, if Service Provider fails to generate any “new” Qualifying Purchases / Sales for a period of at least six (6) months. In the event of termination pursuant to this Section 2(b), Service Provider will forfeit any Referral Fees less than the minimum payout amount of $100.00 specified in Section 6.
Section 3. Promotion.
(a) The Company will make available to Service Provider, or Service Provider will create, subject to the Company’s approval, a variety of graphic and textual links (the “Links” collectively, or “Link” individually) in order to link the Service Provider’s website to the Privy Website. Service Provider and the Company will cooperate in good faith to develop and implement such Links. Each Link will permit recipients to navigate directly to the Privy Website or another website designated by the Company. No Link will be placed on any page or screen that contains content that: advocates discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age; promotes or engages in illegal activities, violates intellectual property rights of third parties; or contains or promotes deceptive information.
(b) Service Provider will be responsible for integrating the Links into its website to properly enable sales tracking, and the Company will not be responsible for any failure to do so by Service Provider, including to the extent such failure may result in any reductions of amounts that would otherwise be paid to Service Provider under this Agreement.
Section 4. Referral Fees.
(a) The Company agrees to pay Service Provider referral fees (“Referral Fees”) in an amount equal to a percentage of Qualifying Net Proceeds (such percentage as set forth on Schedule 1 hereto) received by the Company during the Referral Fee Period (and following expiration of the 30-Day Money Back Guarantee period described in Section 4(e)) attributable to any customer referred by the Service Provider. In the absence of a completed Schedule 1, the percentage amount shall be 20%.
(b) As used herein, the term “Qualifying Net Proceeds” means the gross proceeds received by the Company from the sale of Qualifying Purchases on the Privy Website or any website within its network of related websites, less costs and expenses attributable to taxes, shipping and handling, fraud and bad debts.
(c) As used herein, the term “Qualifying Purchases” means all Privy Real Estate Investing Software subscriptions and other products or services that are purchased by end users during a visit to the Privy Website or any website within its network of related websites following navigation to the designated URL through a hypertext link from Service Provider’s website. Qualifying Purchases will not include any purchase of Privy Real Estate Investing Software subscriptions or other products or services that are purchased by users during a visit to the Privy Website or any website within its network of related websites if the end user did not arrive at the Privy Website or any website within its network of related websites via hypertext link from Service Provider’s website, even if the end user previously made a Qualifying Purchase.
(d) As used herein, the term “Referral Fee Period” means (i) with respect to any Qualifying Purchase that involves a monthly subscription, the shorter of (A) the actual number of consecutive months for which the end user maintains its subscription and (B) 12 months; and (ii) with respect to any Qualifying Purchase that involves an annual subscription, the period covered by the annual subscription, without giving effect to any renewals or extensions of the end user’s subscription.
(e) The Company offers a 30-Day Money Back Guarantee on all software subscription plans. If the end user who made a Qualifying Purchase cancels its subscription during the 30-day trial, then the Service Provider shall not be entitled to any Referral Fees with respect to such Qualifying Purchase.
Section 5. Tracking.
(b) Furthermore, the Company uses a “last referral wins” system, under which a particular end user is assigned to the last referral site he visited prior to entering the Privy Website and then completes a transaction through the Privy Website. For example, the end user visits the website of Service Provider A; then accesses the Privy Website via hyperlink from the website of Service Provider A but does not complete a Qualifying Purchase; then the user later visits the website of Service Provider B and accesses the Privy Website again (this time via hyperlink from the website of Service Provider B) and this time makes a Qualifying Purchase. In this example the Qualifying Purchase is attributable to Service Provider B, and the referral fee is earned by Service Provider B.
(c) The Company will use commercially reasonable efforts to ensure accurate tracking of referrals made by the Service Provider. The Service Provider shall be responsible for ensuring that the URLs on its websites and the Links are formatted properly, a necessary prerequisite to accurate tracking of referrals. Notwithstanding the foregoing, the Service Provider hereby acknowledges and accepts that the tracking system employed by the Company is not 100% fail-safe and that there may on occasion be instances of referrals made that are not credited to Service Provider for any of the following reasons:
(i) Failure by the Service Provider to use the proper format of the specially assigned URL in promotions, webpage links, banner ads, etc.;
(ii) Deliberate or accidental actions by end users to circumvent Service Provider’s special URL so that the Privy Website is unable to accurately track the referral;
(iii) Bugs, glitches or crashes of the tracking software that render it unable to accurately track referrals for a period of time; and
(iv) Acts of nature that cause irretrievable data loss on the computers and back-up media that store the Qualifying Purchase information.
The Company shall not be liable to Service Provider for any referral fees with respect to any Qualifying Purchases that were not properly tracked and recorded by the tracking software, unless the failure to properly track and record the Qualifying Purchase was due to the intentional misconduct or gross negligence of the Company.
Section 6. Payment Schedule.
(a) Referral Fees will be payable after the completion of the 30-Day Money Back Guarantee and at the end of the Company’s fiscal quarterly payment cycle. If during any quarterly period Service Provider’s Referral Fees do not exceed $100.00, then Service Provider will not receive payments until the next quarterly period where Service Provider’s accrued and unpaid Referral Fees equal or exceed $100.00 or until the termination of this Agreement, whichever occurs earlier. The Company may make payments of Referral Fees in advance of the scheduled quarterly payment date at its discretion.
(b) The Company will pay Service Provider via a PayPal account or another payment service with payment instructions to be provided by Service Provider upon entry into this Agreement. Service Provider shall be responsible for updating its payment information with the Company to the extent of any changes thereof. The Company shall be entitled to rely on the payment instructions provided by Service Provider and shall not be liable for any payment of Referral Fees made in error if the payment was made in accordance with instructions provided by the Service Provider. The Company reserves the right to pay Service Provider through other means including ACH, a digital payment service, or a check.
Section 7. Representations and Warranties; Limitation of Liability.
(a) Each of the parties mutually represents and warrants to the other that:
(i) It has full power and authority to enter into this Agreement and to perform its obligations hereunder;
(ii) It has obtained all permits, licenses, and other governmental authorizations and approvals required for its performance under this Agreement; and
(iii) The services to be rendered by it under this Agreement neither infringe nor violate any patent, copyright, trade secret, trademark, or other proprietary right of any third party.
(b) The Company will remain solely responsible for the operation of the Privy Website, and Service Provider will remain solely responsible for the operation of its website. Each party acknowledges that their respective websites may be subject to temporary downtime due to causes beyond their reasonable control subject to the specific terms of this Agreement, retains sole right and control over the programming, content and conduct of transactions over its respective site or service.
(c) EACH PARTY SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY REGARDING (i) THE AMOUNT OF SALES THAT THE PRIVY WEBSITE AND ANY WEBSITE WITHIN ITS NETWORK OF RELATED WEBSITES MAY GENERATE DURING THE TERM, AND (ii) ANY ECONOMIC OR OTHER BENEFIT THAT THE OTHER PARTY MIGHT OBTAIN THROUGH ITS PARTICIPATION IN THIS AGREEMENT. NEITHER THE COMPANY NOR SERVICE PROVIDER WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA) ARISING OUT OF THIS AGREEMENT. THE COMPANY’S ENTIRE LIABILITY ARISING FROM THIS AGREEMENT WHETHER IN CONTRACT OR TORT, WILL NOT EXCEED THE AMOUNTS PAYABLE TO SERVICE PROVIDER HEREUNDER.
Section 8. Qualifying Sites.
(a) The Company reserves the right to refuse any referring site proposed by Service Provider under this Agreement based on site content. For the avoidance of doubt, no website of Service Provider will be permitted to provide Links to the Privy Website or any website within its network of related websites or to earn any referral fees for Qualifying Purchases if the referring website:
(i) Promotes sexually explicit materials;
(ii) Promotes violence;
(iii) Promotes discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
(iv) Promotes any illegal activity;
(v) Lists coupon codes or discounts that were not officially provided to Service Provider by the Company; or
(vi) Infringe or otherwise violate any copyright, trademark, or other intellectual property rights of the Company, the Privy Website or any other website.
(b) The Company may immediately terminate this Agreement and Service Provider will not be entitled to payment of any further Referral Fees if Service Provider breaches this Section 8.
Section 9. Anti-Spam Policy.
(a) Service Provider shall not use any spam e-mail or other forms of Internet abuse (including spamming forums, blogs, Twitter, Facebook and other social media outlets) to seek sales. “Spam” shall include, but not limited to, the following:
(i) Electronic mail messages addressed to a recipient with whom the sender does not have an existing business or personal relationship or is not sent at the request of, or with the express consent of, the recipient through an opt in subscription;
(ii) Messages posted to Usenet, forums, Twitter, Facebook and message boards that are off-topic (unrelated to the topic of discussion), cross-posted to unrelated newsgroups, posted in excessive volume, or posted against forum/message board rules. Be conscious of forum rules;
(iii) Content posted on free blog websites for the sole purpose of keyword spamming, or comments posted to legitimate blogs that violate the comment policy of the blog owner;
(iv) Solicitations posted to chat rooms, or to groups or individuals via Internet Relay Chat or “Instant Messaging” system; or
(v) Certain off-line activities that, while not considered Spam, are similar in nature, including distributing flyers or leaflets on private property or where prohibited by applicable rules, regulations, or laws.
(b) If the Company receives a credible complaint involving allegations of Service Provider’s breach of the Company’s Anti-Spam Policy described in Section 9(a), which complaint is confirmed upon investigation by the Company, the Company may immediately terminate this Agreement upon notice to Service Provider. Termination under this Section 9(b) shall result in the immediate closure of the account maintained by the Company for the benefit of Service Provider, the loss of all Referral Fees (whether or not then accrued), and the forfeiture of any unpaid money on account. At the Company’s discretion, termination under this Section 9(b) may also result Service Provider being permanently banned from participation in any and all of the Company’s internal referral or promotion programs.
(c) If Service Provider wishes to report a violation of the Company’s Anti-Spam Policy, all relevant evidence should be forwarded to the Company’s customer service department at email@example.com
Section 10. Fulfillment and Policy. The Company will be solely responsible for fulfilling all orders for its products and payment processing, and customers who make Qualifying Purchases will be deemed customers of the Company. Accordingly, all rules, policies, operating procedures and information concerning customer orders and sales will apply to those customers, including the Company’s rules of privacy and confidentiality. The Company may change its policies and operating procedures at any time, without notice.
Section 11. Intellectual Property Rights.
(a) The Company hereby grants to Service Provider during the Term a non-exclusive, non-transferable, royalty-free license to establish hyperlinks between Service Provider’s websites and the Privy Website and any website within its network of related websites, and to use the Company’s trade names, logos, trademarks and service marks (the “Privy Marks”) on Service Provider’s website, or by email or other means, solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform Service Provider’s obligations under this Agreement; provided, however, that any other promotional materials or usages containing any of the Privy Marks will be subject to the Company’s prior written approval.
(b) Service Provider hereby grants to the Company, a non-exclusive, non-transferable, royalty-free license to (i) during the Term, establish hyperlinks between the Privy Website and Service Provider’s website, or by email or other means, and to use Service Provider’s promotional materials, trade names, likeness, images, videos, logos, trademarks, testimonials and service marks (the “Affiliate Marks”) solely as is reasonably necessary to establish and promote such hyperlinks and to otherwise perform our obligations under this Agreement; and (ii) during the Term and perpetually thereafter, use, display and disseminate any content or works created by Service Provider which reference the Company, the Privy Website, software, technology, staff, employees or the Privy Marks or any other intellectual property owned by the Company.
(c) Except as set forth above, each of the parties hereto reserves all right, title and interest in its respective intellectual property rights (e.g., patents, copyrights, trade secrets, trademarks and other intellectual property rights). Any use by either party hereto of the other party’s trademarks or other intellectual property rights, except as expressly permitted herein, is strictly prohibited.
Section 12. Indemnification.
(a) The Company agrees to indemnify, defend and hold harmless Service Provider and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney's fees) relating to the operation of the Privy Website, a breach of the Company’s obligations under this Agreement, or the violation of any third party intellectual property rights of editorial content or other materials provided by the Company for display on Service Provider’s website(s).
(b) Service Provider agrees to indemnify, defend and hold harmless the Company and its affiliates, directors, officers, employees and agents, from and against any and all liability, claims, losses, damages, injuries or expenses (including reasonable attorney's fees) relating to the operation of Service Provider’s website(s), a breach of Service Provider’s obligations under this Agreement, or the violation of any third party intellectual property rights of editorial content or other materials displayed or included on Service Provider’s website(s).
Section 13. General Provisions.
(a) Each of the Company and Service Provider shall monitor and periodically test the general availability and operation of their respective websites.
(b) Each of the Company and Service Provider are entering this Agreement as independent contractors, and nothing will be construed to create a partnership, agency, joint venture or employment relationship between the parties hereto.
(c) In its performance of this Agreement and in the operation of each party's respective websites, each of the Company and Service Provider will comply with all applicable laws, regulations, orders and other requirements, now or hereafter in effect, of governmental authorities having jurisdiction. Without limiting the generality of the foregoing, each of the Company and Service Provider will pay, collect and remit such taxes as may be imposed with respect to any compensation, royalties or transactions under this Agreement.
(d) Neither the Company nor Service Provider will be considered to be in breach of or default under this Agreement on account of any delay or failure to perform as a result of any causes or conditions that are beyond its respective reasonable control. If any force majeure event occurs, the affected party will give prompt written notice to the other and will use commercially reasonable efforts to minimize the impact of the event.
(e) This Agreement has been made in and shall be construed and enforced in accordance with the laws of the State of Colorado. Any action arising hereunder will be brought in the federal or state courts, located in Colorado.
(f) Any notices under this agreement will be given in writing. Notices may be given by electronic mail and will be deemed delivered and given for all purposes on the sent date, but only if the receiving party has confirmed its receipt by return electronic mail. Notices sent via traditional means will be sent via certified mail, return receipt requested.
(g) Service Provider may not assign this Agreement, in whole or in part, without the Company’s prior written consent. Subject to that restriction, this Agreement will be binding on, inure to the benefit of, and enforceable against the parties and their respective successors and assigns.
(h) The failure of either party to enforce any provision of this Agreement will not constitute a waiver of the right to subsequently enforce the provision. Any remedies specified in this Agreement are in addition to any other remedies that may be available at law or in equity.
(i) This Agreement represents the entire Agreement between the parties with respect to the subject matter hereof and supersedes any other oral or written agreements regarding such subject matter, and may be amended or modified only by a written instrument signed by a duly authorized agent of each party.
(j) If any provision of this Agreement will be declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of this Agreement will not be affected and will remain in full force and effect.
Participation in the Privy Referral Program implicitly binds Service Provider and Company to the terms and conditions of the Referral Fee Agreement.
This agreement will end in one calendar year from the fully executed date of this agreement unless agreed otherwise.
By R.E. Data Lab Inc.
_______________________________________________ Date: __________
Affiliate Partner Name: