Mutual Affiliate Referral Agreement Terms
Last Revised: Oct 1, 2023
This Affiliate Referral Agreement (this “Agreement”) is entered into by and between Leasecake, Inc., a Delaware corporation (“Leasecake”), and Affiliate Partner, (“Affiliate”). Each of the parties is sometimes hereinafter referred to individually as a “Party” and the parties are hereinafter referred to collectively as the “Parties”.
RECITALS:
WHEREAS, Leasecake is in the business of licensing the Leasecake Platform which has been created to enable the efficient management of leases and that allows active collaboration between lease team members and outside advisors (the “Platform”);
WHEREAS, Leasecake has developed a module referred to as the ASC 842 module (the “Module”) that allows users to efficiently account for leases inputted into the Leasecake Platform and to report such leases in accordance with ASC 842, and;
WHEREAS, Affiliate is engaged in the business of providing services for small to large multi-unit business operators in service-based retail, restaurants, and related markets;
WHEREAS, the Parties desire to mutually promote the other party’s products and services to their respective customers and to refer any such interested customers to the other party on the terms and conditions set forth in this Agreement ;
NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties covenant and agree as follows:
Referral Procedure and Program.
1.1 Referred Customer. A “Referred Customer” means a new account that has been referred to a Party through the solicitation efforts of the other Party pursuant to this Agreement.
1.2 Marketing. Each Party may provide prospective referred customers with written materials (or online information) about the other Party and its products and services which have either been provided or approved in advance by the Party whose materials are being provided. Upon a Party’s request, the other Party shall use its reasonable efforts to assist in making additional contact or solicitation of the prospective Referred Customer.
1.3 Acceptance of Referred Customers. Each Party has the right to approve or reject any proposed referred customer in is sole discretion. Either Party may terminate its agreement with a Referred Customer at any time upon its sole discretion.
1.4 Independent Contractor Relationship. The relationship of Leasecake and Affiliate is that of independent contractors only. Nothing in this Agreement or in the course of the dealing of the parties shall be construed to constitute the parties hereto as partners, joint venturers or as agents or employees of one another or as authorizing either party to obligate or in any way bind, contractually, in liability or otherwise, the other in any manner whatsoever.
1.5 Changes. Leasecake reserves the right to add or amend Exhibit A in respect of the Leasecake Program and/or change or discontinue any aspect of the Leasecake Program in Leasecake’s sole and absolute discretion upon written notice to Affiliate. Affiliate reserves the right to amend Exhibit A in respect of the Affiliate Program and/or change or discontinue any aspect of such Program in Affiliate’s sole and absolute discretion upon written notice to Leasecake. Each Party agrees to abide by all such amendments and/or modifications to this Agreement or the other Party’s respective Program upon notice thereof by such other Party. A Party’s continued participation in the other Party’s Program after notice of any such amendment or change is provided by such other Party will constitute a Party’s acceptance of such amendment or changes.
Intellectual Property.
2.1 License. Each Party hereby grants to the other Party a non-exclusive, non-transferable, non-sublicensable, revocable license to publicly perform, publicly display, and reproduce the other Party’s trademarks and marketing materials as provided by each other (“Materials”) solely during the Term and solely in connection with its participation in the Programs.
2.2 Restrictions. Each Party agrees not to modify, obscure, or delete any proprietary rights notices included in or on the Materials and each Party agrees to include all such notices on all copies. A Party may not modify the other Party’s Materials or make derivative works based on such Materials. Each Party shall abide by any and all guidelines provided by the other Party for the use of that Party’s respective Materials.
2.3 Ownership. Each Party and its respective licensors own all rights, title, and interest in and to the Materials created and provided by such Party. A Party’s rights to the Materials of the other Party are limited to the license expressly granted to such Party in this Agreement. All goodwill will inure to Party who has supplied the Materials. The Party supplying the Materials reserves all rights not expressly granted in this Agreement. Upon expiration or termination of this Agreement, each Party will immediately cease all display, advertising and use of all Materials of the other Party (including any trademarks of the other Party).
3. Confidentiality. Leasecake and Affiliate shall keep all terms of this Agreement confidential for the Term of this Agreement and two years thereafter.
4. Representations and Warranties. Each Party represents, warrants, and covenants to and with the other Party that: (a) the Party will at all times while participating in the Program act in a professional manner that reflects favorably on the other Party and shall not take any actions or inactions that could damage the reputation of the other Party; (b) the Party has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement and doing so will not violate any agreement with any third party; (c) the Party will make no false or misleading representations with respect to the other Party or its products and services and will not hold itself out as an agent of the other Party or having any authority to bind the other Party whatsoever; (d) the Party will make no representations, warranties or guarantees with respect to the specifications, features or capabilities of the other Party’s products or services that are inconsistent with the Materials; and (e) the Party will not violate any applicable laws or regulations through its participation in the Program or any related activities or while performing any activities associated with the Program, including without limitation, CAN-SPAM Act of 2003 and the Telephone Consumer Protection Act.
5. Indemnification. Each Party (the “Indemnifying Party”) shall indemnify, defend, and hold the other Party (“Indemnified Party”) , and its affiliates, shareholders, officers, directors, employees, agents, and representatives harmless from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs, which will be reimbursed as incurred) of any kind or nature, arising from or relating to, any actual or alleged breach of any of such Indemnifying Party’s representations, warranties, or covenants in this Agreement or its negligence or misconduct in connection with participating in the Program. The Indemnifying Party may not settle any indemnified claim against the Indemnified Party unless the settlement unconditionally releases the Indemnified Party of all liability. The Indemnified Party may participate in the defense of any indemnified claim at its expense. Indemnified Party, at the Indemnifying Party’s expense, may undertake and control the defense of any indemnified claim in the event of the material failure of Indemnifying Party to undertake and control the same.
6. Disclaimer. EACH PARTY PROVIDES THEIR RESPECTIVE PROGRAMS AND ITS PRODUCTS AND SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY AND ITS SUPPLIERS AND LICENSORS DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND THOSE ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
7. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS SUPPLIERS OR LICENSORS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFIT, REVENUE, OR DATA) ARISING OUT OF OR IN CONNECTION WITH THE PROGRAMS OR THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE, OR OTHER TORT THEORY OF LIABILITY) EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR COMPENSATION DUE TO A PARTY HEREUNDER, EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THE PROGRAMS OR THIS AGREEMENT, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED USD $500. THE PARTIES AGREE THAT THIS SECTION 7 REPRESENTS A REASONABLE ALLOCATION OF RISK.
8. Term. This Agreement begins on the Effective Date and, unless earlier terminated pursuant to this Agreement, continues for a period of six (6) months. Upon expiration of such period, this Agreement will automatically renew on a month-to-month basis until either Party gives written notice of termination in accordance with Section 9. The foregoing period are collectively referred to as the “Term.”
9. Termination. Either party may terminate this Agreement with or without cause upon 30 days’ prior written notice thereof to the other party. Those provisions of this Agreement that by their terms should survive any termination or expiration of this Agreement will be deemed to survive and remain in full force and effect, including, without limitation, Sections 1.3, 2.2, 2.3, 3 to 7, and 9 to 12.
10. Governing Law and Venue. THIS AGREEMENT WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, WITHOUT GIVING EFFECT TO ANY PRINCIPLES OF CONFLICT OF LAWS. ANY LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT WILL BE BROUGHT EXCLUSIVELY IN THE FEDERAL OR STATE COURTS LOCATED IN ORANGE COUNTY, FLORIDA AND THE PARTIES IRREVOCABLY CONSENT TO PERSONAL JURISDICTION AND VENUE THEREIN.
11. WAIVER OF JURY TRIAL. EACH PARTY HEREBY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE BETWEEN OR AMONG THE PARTIES HERETO, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO OR ARISING FROM THIS AGREEMENT.
12. Miscellaneous.
12.1 Assignment. Neither this Agreement nor any rights or obligations hereunder may be assigned or delegated (whether by operation of law or otherwise) by a Party without the other Party’s prior written consent, not to be unreasonably withheld.
12.2 Amendment; Waiver. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed or issued by both Parties. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement, except as specifically provided herein, shall operate as a waiver of any such right, power or remedy.
12.3 Notices. Any notice, request, demand or other communication required or permitted under this Agreement should be in writing, should reference this Agreement, and will be deemed to be properly given: (i) upon receipt, if delivered personally; (ii) upon confirmation of receipt by the intended recipient, if by e-mail; (iii) five (5) business days after it is sent by registered or certified mail, with written confirmation of receipt; or (iv) three (3) business days after deposit with an internationally recognized express courier, with written confirmation of receipt. Notices must be sent to the respective Party’s address set forth below, unless either Party notifies the other that its address has changed.
12.4 No Third-Party Beneficiaries. This Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party.
12.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
12.6 Force Majeure. Neither Party shall be liable to the other Party for any failure or delay in performance to the extent such failure or delay is caused by reasons beyond that party’s reasonable control.
12.7 Counterparts. This Agreement may be executed electronically and simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument.
12.8 Complete Understanding. This Agreement constitutes the final, complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersedes any prior or contemporaneous agreement.
By accepting this Agreement by checking the box indicating Affiliate’s acceptance of this Agreement, Affiliate acknowledges that: (a) Affiliate has read and understood this Agreement; and (b) Affiliate is legally competent to enter into and agree to this Agreement. If Affiliate does not check the box indicating acceptance of the terms of this Agreement, Affiliate may not access or use the Leasecake Platform or participate in the Leasecake Program.
