Last updated October 10, 2019
This Referral Program Agreement (“Agreement”) is made and entered into by and between SUPPLYPIKE, Inc. doing business as SupplyPike (“SupplyPike”) with its principal place of business located at 3739 N. Steele Blvd. #300, Fayetteville, AR 72703, and the person or company referring prospects to SupplyPike as described herein (“Referral Partner”, “you” or “your”) and is effective on the date you indicate acceptance of this Agreement by emailing your agreement to the terms and conditions set forth herein (“Effective Date”).
You acknowledge and agree that you have read, understand and agree to be bound by all of the terms and conditions of this Agreement, as well as all other applicable rules or policies provided by SupplyPike from time to time, and understand that you are entering into a legally binding agreement with SupplyPike. If you do not agree with the terms and conditions set forth herein, then you must not provide the referral services described herein.
SupplyPike reserves the right to change and/or modify this Agreement and/or any applicable rules and/or policies at any time in its sole discretion and your continued provision of the referral services described herein after SupplyPike’s posting of any changes will constitute your acceptance of such changes. SupplyPike will provide notice of such changes by emailing the updated terms and conditions to you and changing the “last updated” date listed above. Any changes will be effective immediately upon posting such changes and such changes shall be incorporated herein by reference. If you do not agree with the changes, you shall not provide the referral services described herein after the effective date of the changes.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN ARTICLE 9, YOU AGREE THAT DISPUTES BETWEEN YOU AND SUPPLYPIKE WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.
1. DESCRIPTION OF REFERRAL SERVICES
1.1. Referral Services. You shall market and promote SupplyPike’s software-as-a-service solutions (collectively the “SaaS Services”) to potential customers in accordance with this Agreement and earn Commission for Referred Customers as described herein. Subject to your compliance with the terms set forth herein, SupplyPike hereby grants to you a non-exclusive, non-transferable, non-assignable right to market and promote the SaaS Services to potential customers. You shall limit your descriptions of the SaaS Services to the marketing information provided by SupplyPike and shall not make any representations with respect to SupplyPike and/or its SaaS Services that are inconsistent with SupplyPike’s terms, marketing materials and/or other literature provided by SupplyPike. You are not authorized to enter into contracts or agreements on behalf of SupplyPike or to otherwise create obligations of SupplyPike to third parties.
2. REGISTRATION PROCESS; REFERRED CUSTOMERS
2.1. Registration Process. You must provide, at a minimum, the first and last name of the contact, email address, company name, and any other information requested by SupplyPike. You must confirm with SupplyPike that such potential customer is not an existing prospect or customer prior to being accepted by SupplyPike. SupplyPike reserves the right to change the process described herein upon notice to you and/or reject any potential customer in its sole and absolute discretion. Upon successful potential customer introduction, SupplyPike will be responsible for providing a demo of the product.
2.2. Referred Customer. A potential customer introduced by you and accepted by SupplyPike that enters into an applicable agreement with SupplyPike for at least a 14-day trial for any of SupplyPike’s SaaS Services.
3.1. Commission. In consideration for you providing the services described herein and subject to the terms and conditions set forth herein, during the term of this Agreement you shall earn a one-time commission in an amount equal to $150.00 for a Referred Customer that provides retailer portal credentials and completes a 14-day trial for any of SupplyPike’s SaaS Services. You shall earn a one-time commission equal to one month of the “Net Collected Subscription Revenue” the Referred Customer signs up and completes the payment process for upon the completion of the trial. For example, you shall earn a one-time commission in an amount equal to $500.00, should the customer sign up for and complete the payment process for a program worth $500.00 per month. “Net Collected Subscription Revenue” means the subscription fees received by SupplyPike from the Referred Customer for the SaaS Services minus chargebacks (and associated fees), credits and refunds provided to such Referred Customer. For avoidance of doubt, the Net Collected Subscription Revenue relates only to the fees received by SupplyPike from the Referred Customer for its SaaS Services and shall not relate to any other revenue source and/or other products and/or services provided by SupplyPike. In the event of a chargeback (and associated fees), credits and refunds provided to a Referred Customer, you acknowledge and agree that SupplyPike may deduct the applicable portion of amounts from your subsequent Commission payments. In the event no further Commission payments are due to you, then you shall promptly submit payment to SupplyPike for any chargebacks (and associated fees), credits and refunds upon SupplyPike’s request. Notwithstanding anything herein to the contrary, Commission shall be “earned” only if (a) you follow the process described herein, (b) SupplyPike receives full payment from such Referred Customer for its SaaS Services; and (c) you are not in breach of this Agreement.
3.2. Payment. You shall send a one-time invoice to SupplyPike upon the completion of a 14-day trial and/or the completion of registration and payment for each Referred Customer. SupplyPike shall then pay you within 30 days of receiving your invoices. You will be solely responsible for all taxes, costs and expenses related to you providing the services described herein.
4. TERMS AND CONDITIONS
4.1. Term. The term of this Agreement shall commence on the Effective Date and continue for 30 days, upon which the agreement will be reevaluated and extended, if both parties are mutually agreeable.
4.2. Termination for Breach. If a party materially breaches this Agreement (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) days after its receipt of written notice of material breach, the non-defaulting party may terminate this Agreement upon written notice to the Defaulting Party. Termination of this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement and/or at law and/or in equity.
4.3. Termination for Convenience. Either party may terminate this Agreement upon seven (7) days prior written notice to the other party.
4.4. Effect of Termination. Upon termination of this Agreement, you will immediately (i) cease using SupplyPike’s Trademarks, (ii) return all Confidential Information, Materials, Referred Customer information and information related to potential customers to SupplyPike, (iii) discontinue holding yourself out as a marketer and promoter of the SaaS Services, and (iv) pay SupplyPike all outstanding fees, charges and expenses incurred through the effective date of termination (such as any chargebacks). SupplyPike will pay you Commission earned for Referred Customers through the effective date of termination in accordance with the terms and conditions set forth herein.5. INTELLECTUAL PROPERTY
5.1. Ownership; Access & Use; Restrictions. SupplyPike owns all right, title and interest in and to the SaaS Services and related developments, enhancements and revisions, intellectual property rights and/or proprietary rights therein and related thereto. SupplyPike shall establish, and may vary from time to time, the pricing, terms and conditions related to the SaaS Services. SupplyPike grants you the right to access and use the SaaS Services solely for demonstration purposes as it relates to you providing the services described herein. You shall not (a) modify, adapt, alter, translate, copy, perform and display (publicly or otherwise) or create derivative works based on the SaaS Services; (b) merge or bundle the SaaS Services with other products and/or software; (c) sublicense, lease, rent and/or loan the SaaS Services; (d) reverse engineer, decompile, disassemble and/or otherwise attempt to derive the source code for the SaaS Services; (e) remove, modify and/or obscure any identification and/or proprietary and/or restrictive rights markings and/or notices from the SaaS Services; (f) access and/or use the SaaS Services in order to develop a product and/or service which competes with the SaaS Services; and/or (g) otherwise use, copy and/or distribute the SaaS Services except as expressly allowed hereunder. You shall not transmit any viruses and/or upload, access, store and/or distribute information that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, offensive or facilitates illegal activity and/or causes damage and/or injury to any person and/or property.
5.2. License Grants; Restrictions. During the term of this Agreement, SupplyPike hereby grants to you a non-transferable, non-exclusive, limited license to use SupplyPike’s (a) name, logos and/or trademarks (collectively, the “Trademarks”) and (b) brochures, marketing materials, referral links, white papers, case studies and/or other materials provided by SupplyPike (collectively, the “Materials”) in accordance with this Agreement solely in relation to the performance of the services described herein. Your use of such Trademarks and Materials shall be in accordance with SupplyPike’s policies and procedures established from time to time. You shall not (i) attach any other trademark, logo and/or trade designation to the SaaS Services unless expressly agreed in writing by SupplyPike and/or (ii) do and/or cause to be done any act and/or anything contesting and/or in any way impairing and/or reducing SupplyPike’s right, title and interest in the Trademarks and/or Materials. SupplyPike has the right to discontinue and/or alter the form, shape and/or artwork of the Trademarks and/or content of the Materials. You acknowledge that your use of the Trademarks and/or Materials shall not create any right, title and interest, in or to the Trademarks and/or Materials and all such uses inure to the benefit of SupplyPike. SupplyPike reserves the right at any time to review your use of the Trademarks and/or Materials to determine if such use is in compliance with this Agreement. In the event SupplyPike desires to include your information on its referral partner website at any time during the term of this Agreement, you hereby grant to SupplyPike a non-transferable, non-exclusive, limited license to use the logos and/or trademarks provided by you on such referral partner website.6. CONFIDENTIALITY; PRIVACY
6.1. You will keep all proprietary information related to the business of SupplyPike and any of its affiliates, clients and other third parties to which you have access, whether in oral, written, graphic and/or machine-readable form, in the course of or in connection with this Agreement (collectively, the “Confidential Information”) confidential and will only use such Confidential Information to perform your obligations under this Agreement. You may disclose the Confidential Information only to those who have a need to know such Confidential Information solely in connection with this Agreement; provided that you assume full responsibility for any failure to comply with this Agreement. You acknowledge that a breach of the obligations related to Confidential Information may result in irreparable and continuing damage to SupplyPike for which monetary damages may not be sufficient, and you agree that SupplyPike will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction.
and SupplyPike’s “Terms of Service” set forth at https://www.SupplyPike.com/terms-of-service
, both of which shall be incorporated herein by reference and may be changed from time to time in SupplyPike’s sole and absolute discretion.7. REPRESENTATIONS + WARRANTIES
7.1. Warranty. You represent, warrant and covenant that you (i) possess full power and authority to enter into this Agreement, (ii) have the proper skill, training and background to perform the services in a competent and professional manner; (iii) will use due diligence in safeguarding the interests of SupplyPike in accordance with this Agreement and any policies and procedures provided to you by SupplyPike; and (iv) will comply with all applicable laws, rules, regulations, orders of any governmental (including any regulatory or quasi-regulatory) agency, and will not violate or contravene the terms of any of SupplyPike’s contracts.
7.2. SupplyPike Warranty. SupplyPike warrants that SupplyPike possesses full power and authority to enter into this Agreement and has the ability to grant the rights described herein.
7.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.8. INDEMNIFICATION; LIMITATION OF LIABILITY
8.1. Indemnification. You, at your expense, will indemnify, defend and hold harmless SupplyPike, its officers, associates, employees, contractors and agents from and against any and all claims, damages, liabilities, losses, costs, demands and expenses (including reasonable attorneys’ fees and costs of litigation) (collectively “Claim(s)”) arising out of or relating to (a) any negligent act and/or omission of you relating to your activities in connection with this Agreement; (b) any misrepresentation by you related to SupplyPike, its SaaS Services and/or its other products and/or services(s); (c) your breach of this Agreement; (d) your gross negligence and/or wilful acts and/or omissions; (e) any failure to comply with any applicable law, rule, regulation, order of any governmental (including any regulatory or quasi-regulatory) agency or contract; and/or (f) any determination by a federal, state or local government or administrative agency, or other regulatory or quasi-regulatory entity, or any court, that you acted as an employee of SupplyPike in performing the services described herein (in which case you also waive any and all claims that you may have as a result of any such determination). You will be solely liable for any claims, warranties and/or representations made by you that differ from the warranties expressly provided by SupplyPike. You will have the sole right to conduct the defense of any claim and/or action, and/or the negotiation of any settlement, in respect of a Claim; however, SupplyPike may reasonably participate in such defense at its sole expense.
8.2. Limitation of Liability. SUPPLYPIKE’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE COMMISSIONS PAID BY SUPPLYPIKE TO YOU DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL SUPPLYPIKE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.3. Third Party Products & Services. You acknowledge and agree that SupplyPike is not liable for the performance of any third party products and/or services used in relation to this Agreement.
9. DISPUTE RESOLUTION
9.1. Disputes. Before filing a claim against SupplyPike, you agree to try to resolve the dispute informally by contacting SupplyPike at firstname.lastname@example.org
. SupplyPike will try to resolve the dispute by contacting you via email, but if SupplyPike cannot resolve the dispute within thirty (30) days of submission, you and/or SupplyPike agree to resolve any claims related to this Agreement through final and binding arbitration, except as forth under ‘Exceptions to Agreement to Arbitrate’ section below.
9.2. Arbitration Procedures. Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if you opt out of arbitration as described herein, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association. Any such controversy and/or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. Unless otherwise agreed to by SupplyPike, the arbitration shall be held in Fayetteville, Arkansas. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings.
9.3. Exceptions to Agreement to Arbitrate. Either you and/or SupplyPike may assert claims, if it qualifies, in small claims court in Fayetteville, Arkansas. Either party may bring a lawsuit for injunctive relief to stop unauthorized use and/or abuse of the services, breach of SupplyPike’s Confidential Information and/or intellectual property infringement without first engaging in arbitration and/or the informal dispute-resolution process described in this Article.
All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to times and will be deemed to have been given one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. Nothing contained in this Agreement shall create or imply any agency relationship between the parties, nor shall this Agreement be deemed to constitute a joint venture or partnership between the parties. It is further understood and agreed that your relationship with SupplyPike is and shall continue to be that of an independent contractor and you shall not be entitled to receive employee benefits from SupplyPike and you are responsible for the payment of all taxes and withholdings specified by law, which may be due in regard to payments made by SupplyPike.
No waiver of any of the terms of this Agreement by either party will be valid unless agreed to in writing and designated as such. Any forbearance or delay on the part of either party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce the same for such occurrence or any other occurrence. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect. The headings and titles of the paragraphs of this Agreement are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein. You may not assign, as a result of a change of control or by operation of law or otherwise, your rights and/or obligations under this Agreement without the prior written consent of SupplyPike. This Agreement will be binding upon the parties and their respective legal successors and permitted assigns. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Arkansas, without regard to its choice of laws principles. Any action related to or arising from this MSA that is an exception to the arbitration process described herein shall take place exclusively in the courts situated in Fayetteville, Arkansas and the parties hereby submit to the venue of the courts situated therein. In any arbitration, suit, action, or legal proceeding relating to this Agreement, the prevailing party shall have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection therewith. This Agreement constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the parties. This Agreement may be delivered and executed electronically using electronic signature or by other electronic communication used by the parties and an electronic copy of this Agreement and any signatures affixed hereto shall be considered for all purposes as originals.
3739 N Steele Blvd Ste 300
Fayetteville, AR 72703
Phone: (479) email@example.com