Affiliate Referral Agreement Terms
Last Revised: May 1, 2020
This Affiliate Referral Agreement (this “Agreement”) has been entered by and between Leasecake, Inc., a Delaware corporation (“Leasecake”), and the Affiliate Partner (“Affiliate”).
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.
- Program. Leasecake has developed a referral program pursuant to which Leasecake will provide certain incentives to referral partners who refer potential customers to Leasecake, as further described in Exhibit A attached hereto, which is incorporated herein by reference (the “Program”).
- Affiliate Obligations – Any compensation and other benefits in respect of each Referred Customer are conditioned upon Affiliate performing the following obligations, to the reasonable satisfaction of Leasecake:
Make introductions to potential new customers;
Build rapport with Referred Customer leading to a phone call and/or scheduling a demo with Leasecake;
Encourage Referred Customer to participate in Leasecake customer success marketing materials, and company profiles, and white papers when appropriate.
- Marketing. Affiliate may provide prospective Referred Customers with written materials (or online information) about Leasecake and its products and services which have either been provided or approved in advance by Leasecake. Upon Leasecake’s request, Affiliate shall use its reasonable efforts to assist Leasecake in making additional contact or solicitation of the prospective Referred Customer.
- Acceptance of Referred Customers. Leasecake has the right to approve or reject any proposed Referred Customer in is sole discretion. Leasecake may terminate its agreement with a Referred Customer at any time upon its sole discretion, at which time any compensation to Affiliate with respect to such Referred Customer shall immediately cease.
- 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.
- Changes. Leasecake reserves the right to amend Exhibit A and/or change or discontinue any aspect of the Program in Leasecake’s sole and absolute discretion upon written notice to Affiliate. Affiliate agrees to abide by all such amendments and/or modifications to this Agreement or the Program upon notice thereof by Leasecake. Affiliate’s continued participation in the Program after notice of any such amendment or change is provided by Leasecake will constitute Affiliate’s acceptance of such amendment or changes.
- Affiliate Exclusivity. During the term of this Agreement, Affiliate will exclusively offer Leasecake services to other organizations, and will not, directly or indirectly offer or provide products or services that are the same as or similar to those products provided by Leasecake.
- Non-Solicitation. Affiliate acknowledges and agrees that during the Term (as defined below) and for a period of five (5) years after termination of this Agreement, Affiliate will not, directly or indirectly, solicit any Referred Customer for the purpose of offering or providing products or services that are the same as or similar to those products and services provided by Leasecake to Referred Customers during the Term or otherwise inducing any Referred Customer to terminate its agreement with Leasecake, without the prior written consent of Leasecake.
- Intellectual Property.
- License. Leasecake hereby grants to Affiliate a non-exclusive, non-transferable, non-sublicenseable, revocable license to publicly perform, publicly display, and reproduce the Leasecake trademarks and marketing materials as provided by Leasecake to Affiliate (“Materials”) solely during the Term and solely in connection with its participation in the Program.
- Restrictions. Affiliate agrees not to modify, obscure, or delete any proprietary rights notices included in or on the Materials and Affiliate agrees to include all such notices on all copies. Affiliate may not modify the Materials or make derivative works based on the Materials. Affiliate shall abide by any and all guidelines provided by Leasecake for the use of the Materials.
- Ownership. Leasecake and its licensors own all rights, title, and interest in and to the Materials. Affiliate’s rights to the Materials are limited to the license expressly granted to Affiliate in this Agreement. All goodwill will inure to Leasecake. Leasecake reserves all rights not expressly granted in this Agreement. Upon expiration or termination of this Agreement, Affiliate will immediately cease all display, advertising and use of all Materials (including any Leasecake trademarks).
- Confidentiality. For the purposes of this Agreement, “Confidential Information” means any business or technical information that either party discloses to the other party, in writing, orally, or by any other means, that should reasonably have been understood by the receiving party due to “confidential” and similar markings, the circumstances of disclosure, or the nature of the information itself, to be proprietary and confidential to the other party, including things like data, know-how, processes, ideas, schematics and other technical, business, financial, and product development plans, names and expertise of employees and consultants, and customer lists. The party receiving the Confidential Information agrees to hold all such information in the strictest of confidence, and to not use or disclose or sell such information for any purpose whatsoever, except as permitted under this Agreement. Each party agrees to maintain in confidence and protect the other party’s Confidential Information using at least the same degree of care as such party uses for our own information of a similar nature, but in all events at least a reasonable degree of care. Each party agrees to take all reasonable precautions to prevent any unauthorized disclosure of the other’s Confidential Information, including, without limitation, disclosing Confidential Information only to such party’s employees, independent contractors, consultants, and legal and financial advisors (collectively, “Representatives”) (i) with a need to know such information, (ii) who are parties to appropriate agreements sufficient to comply with this Section 3, and (iii) who are informed of the nondisclosure obligations imposed by this Section 3. Each party will be responsible for all acts and omissions of its Representatives. The foregoing obligations will not restrict either party from disclosing Confidential Information of the other party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the party required to make such a disclosure gives reasonable notice to the other party to enable them to contest such order or requirement. The restrictions set forth in this Section 3 shall remain in effect during the Term, and for five (5) years thereafter. The restrictions set forth in Section 3 will not apply with respect to any Confidential Information that: (a) was or becomes publicly known through no fault of the receiving party; (b) was rightfully known or becomes rightfully known to the receiving party without confidential or proprietary restriction from a source other than the disclosing party who has a right to disclose it; (c) is approved by the disclosing party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing party; or (d) the receiving party independently develops without access to or use of the other party’s Confidential Information.
- Representations and Warranties. Affiliate represents, warrants, and covenants that: (a) Affiliate will at all times while participating in the Program act in a professional manner that reflects favorably on Leasecake and shall not take any actions or inactions that could damage the reputation of Leasecake; (b) Affiliate 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) Affiliate will make no false or misleading representations with respect to Leasecake or its products and services and will not hold itself out as an agent of Leasecake or having any authority to bind Leasecake whatsoever; (d) Affiliate will make no representations, warranties or guarantees with respect to the specifications, features or capabilities of Leasecake’s products or services that are inconsistent with the Materials; and (e) Affiliate 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.
- Indemnification. Affiliate shall indemnify, defend, and hold Leasecake, 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 Affiliate’s representations, warranties, or covenants in this Agreement or its negligence or misconduct in connection with participating in the Program. Affiliate may not settle any indemnified claim against Leasecake unless the settlement unconditionally releases Leasecake of all liability. Leasecake may participate in the defense of any indemnified claim at its expense. Leasecake, at Affiliate’s expense, may undertake and control the defense of any indemnified claim in the event of the material failure of Affiliate to undertake and control the same.
- Disclaimer. Leasecake provides the Program AND ITS PRODUCTS AND SERVICES on an “as is” and “as available” basis. To the FULLEST extent permitted by law, Leasecake 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.
- Limitation of Liability. To the FULLEST extent permitted by law, in no event shall Leasecake or any of its suppliers or licensors have any liability to Affiliate 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 Program 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 ANY COMPENSATION DUE TO REFERRAL PARTNER HEREUNDER, Leasecake’s total cumulative liability to Affiliate or any third party arising out of or in connection with the Program 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.
- Term. This Agreement begins on the Effective Date and, unless earlier terminated pursuant to this Agreement, continues for a period of one (1) year. 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.”
- Termination. Either party may terminate this Agreement with or without cause upon 30 days’ prior written notice thereof to the other party. In the event Leasecake terminates this Agreement for Affiliate’s breach which is not remedied within 15 days of receipt of written notice from Leasecake identifying in reasonable detail the reasons for such breach, all payments of any compensation or other benefits to Affiliate will immediately cease. Upon any other termination or expiration of this Agreement, Leasecake shall pay all amounts due to Affiliate for the Referred Customers at the time of termination according to the commission calculation in Exhibit A including any renewals, and all payments of any compensation or other benefits to Affiliate for new potential customers will cease. 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 1.2, 2.2, 2.3, 3 to 7, and 9 to 12.
- 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.
- 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.
- Assignment. Neither this Agreement nor any rights or obligations hereunder may be assigned or delegated (whether by operation of law or otherwise) by Affiliate without Leasecake’s prior written consent, not to be unreasonably withheld.
- Amendment; Waiver. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed or issued by Leasecake. 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.