These terms and conditions, together with the Referral Agreement (“CRP”), constitute a binding legal agreement between You (either as an individual or entity, hereinafter, “You”) and CLEARSALE, LLC (“ClearSale,” “We,” or “Us”).
Hereafter, both of the above PARTIES shall be referred to as either the PARTIES or PARTNERS, interchangeably, for the purposes of the AGREEMENT.
WHEREAS, The PARTIES desire to enter into a mutual referral relationship under which Clearsale shall refer YOU potential clients in exchange for a Referral Fee, as well as YOU shall refer potential clients to Clearsale in exchange for a Referral Fee.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency which is hereby acknowledged, the parties agree as follows:
Prior to making any referrals, the prospective Referral Party must submit this Agreement with a minimum of one (1) director level signature from person(s) authorized to bind Referral Party’s U.S. business entity prior to referring any client. After prospective Referral Party receives a copy of the fully executed Agreement, it may commence referring Referred Clients (as hereinafter defined).
As used herein, the terms (as hereinafter defined) Referred Client, Valid Referred Client, Taken Referred Client, Accepted Referred Client, Denied Referred Client, Expired Referred Client, and Installed Referred Client may be individually or collectively referred to herein as “Referred Client(s)”.
Exhibit A is attached hereto and made part hereof. EXHIBIT B contains definitions of all capitalized terms used herein.
Referral Party submits the name of Referred Client and the PARTY receiving the Referred Client decides whether the Referred Client is a Taken Referred Client or Valid Referred Client:
Upon identifying a Referred Client (the “Referred Client(s)”), Referral Party will submit the name of the Referred Client and the Referenced Party will then inform Referral Party if the Referred Client is a Taken Referred Client or a Valid Referred Client, as hereinafter defined.
(a) If the Referred Client has already been referred to Referenced Party by a different referral party, Referenced Party will notify Referral Party that such Referred Client is taken (“Taken Referred Client”). This means the Referred Client is already taken by a different referral party. If and until such time as Referred Client is not a Taken Referred Client, Referral Party shall have no rights or claims of any kind resulting from any type of relationship between it or Referenced Party and the Referred Client, nor shall Referenced Party have any obligations to Referral Party or Taken Referred Client in connection therewith.
(b) If the Referred Client is not a Taken Referred Client and meets all of the other eligibility criteria set forth herein, Referenced Party will notify Referral Party in writing that the Referred Client is a Valid Referred Client (“Valid Referred Client”).
Referral Party submits the Referred Client to Referenced Party using the following form, unless Referenced Party expressly agrees otherwise in writing: http://offer.clear.sale/referral-form-clearsale-0
In order to qualify as a potential Accepted Referred Client (as hereinafter defined), unless Referenced Party expressly agrees otherwise in writing, Referral Party must be able to arrange a direct, personal introduction to an individual with sufficient position, authority and/or influence and information within the organization of the Referred Client that it is reasonable to assume that such person’s support would result in a sales agreement between the Referred Client and Referenced Party (a "Sales Agreement").
Referenced Party decides whether submission of Valid Referred Client will be a Declined Referred Client or an Accepted Referred Client:
After the Referral Party provides Referenced Party with the Referred Client, Referenced Party shall notify Referral Party if Referenced Party accepts the Valid Referred Client. Referenced Party may, in its sole discretion, either accept or decline any Referred Client or Valid Referred Client. Referenced Party may (but is not obligated) to take into account the following factors when determining whether to accept or decline a Valid Referred Client: (i) whether Referenced Party has enough information about the Valid Referred Client; (ii) whether the Valid Referred Client is applicable to the correspondent services; (iii) if Referenced Party has already delivered a financial quote to the Valid Referred Client; (iv) if the Valid Referred Client’s contact information is generic or public; (v) if a previous referral of the Valid Referred Client has already been submitted by a different Referral Party and is not expired.
(a) If Referenced Party declines the Valid Referred Client, Referenced Party shall notify the Referral Party that such Valid Referred Client is a Declined Referred Client (a “Declined Referred Client”). In such case, Referral Party shall have no rights or claims of any kind resulting from any type of referral or relationship between it or Referenced Party and the Referred Client, nor shall Referenced Party have any obligations to Referral Party or Declined Referred Client in connection therewith.
(b) If Referenced Party accepts the Valid Referred Client, such Valid Referred Client shall thereafter become known and referred to hereinafter as an “Accepted Referred Client”. The Accepted Referred Client shall be exclusively connected with the Referral Party that submitted the Accepted Referred Client for the number of months set forth in the Standard Conditions or applicable Promotional Conditions on the Referral Agreement (such number of months referred to herein as the “Accepted Period”) and subject to change in Referenced Party’s sole discretion. The Accepted Period shall begin as soon as Referenced Party notifies the Referral Party that the Valid Referred Client is an Accepted Referred Client.
If the Accepted Referred Client does not become an Installed Referred Client (as hereinafter defined) within the applicable Accepted Period, the Accepted Referred Client will become an Expired Referred Client (as hereinafter defined), and Referral Party will have no rights or claims of any kind resulting from any type of relationship between it or Referenced Party with the Referred Client or the referral thereof, nor shall Referenced Party have any obligations to Referral Party or Referred Client in connection therewith. Such Expired Referred Client may be referred to Referenced Party by a different referral party.
Referral Party Supports Referenced Party’s Sales Process:
Referral Party shall, as soon as practical, arrange an introductory meeting (or if that is not practical, an introductory teleconference or video conference) between the Accepted Referred Client and Referenced Party in which, if Referenced Party so requests, Referral Party will participate.
Accepted Referred Client may or may not become an Installed Referred Client:
(a) If Referral Party’s Accepted Referred Client does not (i) sign a Sales Agreement with Referenced Party and (ii) commence chargeable transactions with Referenced Party within the Accepted Period, then the Accepted Referred Client will (1) not become an Installed Referred Client, (2) cease to be exclusively connected to the Referral Party, (3) become an Expired Referred Client (“Expired Referred Client”), and (4) Referral Party will have no rights or claims of any kind resulting from any type of relationship between it or Referenced Party and the Referred Client or the referral thereof, nor shall Referenced Party have any obligations to Referral Party or Referred Client in connection therewith. Such Expired Referred Client may be referred to Referenced Party by a different referral party.
(b) If Referral Party’s Accepted Referred Client (i) signs a Sales Agreement with Referenced Party, and (ii) commences chargeable transactions with Referenced Party within the Accepted Period (such acceptance and commencement to be known as an “Accepted Referral”), then such Accepted Referred Client will thereafter become known and referred to hereinafter as an “Installed Referred Client” and the Referral Party may be eligible to receive Referral Fees connected therewith as defined in Section 2 herein below.
Except as specifically provided herein, nothing in this Agreement shall be construed as limiting in any manner either party’s marketing or distribution activities or its appointment of other dealers, distributors, licenses, agents or representatives of any kind.
a) Referenced Party shall owe Referral Party a referral fee (the "Referral Fee") based on the amounts paid by the Referred Client to Referenced Party, during the first 12-month period from the date of the operation's start with Referenced Party (unless otherwise stated in the Referral Agreement), actually collected during the Referral Fee Period (as set forth in the Referral Agreement) for each Installed Referred Client.
b) The Referral Fee amount owed is pursuant to the Standard Conditions (“Standard Conditions”) and/or applicable Promotional Conditions (“Promotional Conditions”) of the Referral Party (as further described on the Referral Agreement), at the time that each Referred Client becomes an Installed Referred Client.
c) The Referral Fee may include a one-time payment fee to Referral Party. Referral fees for each installed Referred Client will be calculated quarterly (in increments of three (3) months) commencing on the first date that Referred Client becomes an Installed Referred Client.
d) For purposes herein, the amount of time that Referenced Party is obligated to pay the Referral Fee to the Referral Party (based on the Standard Conditions and applicable Promotional Conditions) shall be known as the “Referral Party Compensation Period”.
e) The Referral Party Compensation Period shall commence on the date Referenced Party receives chargeable transactions from the Installed Referred Client after the effective date of the Installed Referred Client’s Sales Agreement with Referenced Party.
f) Notwithstanding the foregoing, in Referenced Party’s sole discretion, the Referral Party and Referenced Party may agree to substitute the Referral Fee compensation payment with another kind of benefit, only by written agreement between the Referral Party and Referenced Party.
g) All payments to Referral Party shall be in United States Dollars unless Referenced Party and Referral Party agree otherwise in writing.
h) No Referral Fee shall be owed to Referral Party unless (i) a Sales Agreement for Referenced Party’s Offerings is executed with an Installed Referred Client as the direct result of the specific set of discussions between Referenced Party and the Installed Referred Client that started with the introduction arranged by Referral Party, and (ii) Referenced Party receives chargeable transactions from the Installed Referred Client.
i) No Referral Fee shall be owed to Referral Party unless Referral Party complies with all its obligations set forth in this Agreement.
a) Referenced Party will maintain sole and exclusive control of the sales process with respect to the Offerings and the Referred Clients.
b) Referenced Party will provide the Offerings to Referred Clients at rates determined by Referenced Party in its sole discretion. Referenced Party reserves the right to change or modify the design of, change the price of, or discontinue any of the Offerings at any time.
c) Referenced Party shall be responsible for the installation of all purchased software, training and service related to each Referred Client.
d) Referenced Party shall compensate Referral Party via the Referral Fee.
e) Referenced Party shall pay the Referral Fee on a calendar quarterly basis and shall owe the Referral Fee only for quarters in which the Referral Fee equals $50.00 or more.
f) Referenced Party shall provide Referral Fee with a compensation report (the "Compensation Report") in connection with the payment of the Referral Fee.
a) Referral Party shall refer Referred Clients to Referenced Party for the Offerings pursuant to the terms of this Agreement and the instructions set forth in EXHIBIT A, Referral Party Guidelines.
b) Referral Party shall promote and refer to Referenced Party as the provider of the Offerings.
d) Referral Party shall not provide Referred Clients with any documentation related to the Offerings, including, but not limited to, an application for the Offerings, a Sales Agreement for the Offerings, pricing information related to the Offerings, or any other documentation related to the Offerings, except if authorized by Referenced Party in writing.
e) Referral Party shall provide Referenced Party with all information reasonably necessary to contact Referred Clients.
f) Referral Party shall forward all inbound inquiries from Referred Clients about the Offerings to The Referenced Company.
g) Referral Party shall identify Referenced Party as its strategic partner or other similar titled entity in customer packets or similar promotional materials.
h) Referral Party shall avoid deceptive, misleading or unethical practices that are, or are reasonably likely to be, detrimental to Referenced Party or the Offerings, including, but not limited to, public disparagement of Referenced Party, its employees, directors, contractors or agents, or any of the Offerings.
i) Referral Party shall make no representation, promise or guarantee about any future action of Referenced Party or any future feature or characteristic of any of the Offerings without first receiving permission to do so from Referenced Party in writing.
j) Referral Party shall notify Referenced Party in writing of any dispute regarding the Referral Fee or the Compensation Report within sixty (60) days of receiving the Compensation Report. Referral Party’s failure to notify Referenced Party of any error or dispute regarding the Referral Fee or the Compensation Report within sixty (60) days of receipt of the Compensation Report shall forever waive and bar the dispute or any claim with respect thereto.
k) Referral Party shall comply with all applicable federal, state and local statutes, laws, ordinances and regulations (“Laws”) in the performance of its duties under this Agreement.
l) Any materials utilizing Referenced Party’s trademarks, trade identities or copyrights or making reference to Referenced Party or its products or Offerings shall require Referenced Party’s prior written approval, not to be unreasonably withheld, conditioned or delayed.
a) This Agreement shall become effective upon mutual execution by both parties hereto and shall remain in full force and effect for the period described in the Referral Agreement (“Term of Agreement” or “Term(s)”).
b) This Agreement shall automatically renew for consecutive Terms described in the Referral Agreement thereafter unless either party gives written notice to the other of its intent not renew at least thirty (30) days prior to the expiration of the then-current Term.
c) Upon termination or expiration of this Agreement for any reason whatsoever: (i) all rights and hereunder shall terminate;
(ii) Referral Party will cease promoting the Offerings and referring customers/prospects to Referenced Party; (iii) if the applicable Referral Fee period extends beyond the date of expiration or termination of this Agreement, Referenced Party will continue to pay Referral Party the applicable Referral Fee; (iv) Referral Party shall return to Referenced Party or certify in writing to Referenced Party that it has destroyed all documents and other tangible items it or its employees or agents have received or created pertaining, referring or relating to any Confidential Information (as hereinafter defined); and (v) if termination is due to a breach by Referral Party, no further Referral Fee shall be paid to Referral Party.
Referral Party will indemnify, defend and hold Referenced Party and its parents, subsidiaries and affiliates harmless, including their respective directors, officers, employees (collectively, the "Indemnified Parties") and agents, from and against any liability, loss, claim, demand, cost or expense, (including, but not limited to, reasonable attorney's fees), imposed or claimed against the Indemnified Parties (i) as a result of Referral Party’s breach of this Agreement, or (ii) in connection with Referral Party’s performance under this Agreement.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS AND MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF CLIENTABILITY, TITLE, NON-INFRINGEMENT, ACCURACY, COMPLETENESS, FREEDOM FROM DEFECTS, UNINTERRUPTED USE, OR FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES BASED UPON COURSE OF DEALING OR TRADE USAGE. EXCEPT WITH RESPECT TO INDEMNIFICATION OR BREACH OF CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOSS OF USE OR LOSS OF DATA, NOR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OR CAUSE OF ACTION WHETHER UNDER THIS AGREEMENT OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS.
It is mutually understood and agreed that in the performance of its duties hereunder, Referral Party is at all times serving as an independent contractor. Referral Party shall pay all taxes that may be owed on any compensation earned hereunder. Referral Party shall not be considered to be an agent or employee of Referenced Party for any purpose and Referral Party shall not be eligible to participate in any benefits Referenced Party provides for its own employees. Referral Party does not have the authority, right or ability to bind or commit Referenced Party in any way (including, without limitation, by accepting orders) or to sell any Offerings and will not attempt to do so or imply that it may do so.
Should it be necessary for Referenced Party to enforce its rights under this Agreement in any legal action, Referral Party agrees to reimburse Referenced Party for all costs and expenses, including reasonable attorney's fees, as a result of such legal action.
Referral Party agrees that it will not divulge or disclose any Confidential Information without the written consent of Referenced Party.
No party will obtain any proprietary rights to any Confidential Information of another party. “Confidential Information” means all proprietary, secret or confidential information or data relating to Referenced Party and its affiliates, subsidiaries, employees, products or services, clients, customers, potential customers, Referred Clients, or the Offerings.
Confidential Information shall include proprietary information of card associations, pricing information, Client applications, Client agreements, Client accounts and records, customer lists, cardholder account numbers, computer access codes, instruction and/or procedural manuals, and the terms and conditions of this Agreement.
Information shall not be considered Confidential Information to the extent, but only to the extent, that such information: (i) is already known to Referral Party free of any restriction at the time it is obtained; (ii) is subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) becomes publicly available through no wrongful act of Referral Party; (iv) is independently developed by the Referral Party without reference to any Confidential Information of the other; or (v) is required to be disclosed by law.
a) Each party represents and warrants to the other that it: (i) has all requisite corporate power and authority to enter into this Agreement; (ii) is duly authorized by all requisite action to execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby, and that the same do not and will not conflict or cause a default with respect to its obligations under any other agreement; (iii) has duly executed and delivered this Agreement; and (iv) this Agreement is enforceable against it in accordance with its terms.
b) This Agreement may not be amended, modified or waived except in writing signed by Referenced Party and Referral Party.
c) Each party shall deliver all notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a “Notice”) in writing and addressed to the other party at the addresses set forth immediately below (or to such other address that may be designated by the receiving party from time to time in accordance with this subsection). Each party shall deliver all Notices by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail of a PDF document (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt by the receiving party and (b) if the party giving the Notice has complied with the requirements of this subsection.
d) Referral Party may not assign any rights or delegate any duties hereunder except as expressly provided herein and any unauthorized assignment shall be null and void. Failure of any party to exercise or enforce its rights hereunder shall not be deemed a waiver.
e) This Agreement and all matters related thereto shall be construed in accordance with the laws of the State of Florida, United States, without regards to conflicts of laws principles.
f) Any action or proceeding arising out of or related to this Agreement shall be brought exclusively in a court located in Miami-Dade County, Florida, United States.
g) Each party expressly consents to the jurisdiction of such courts. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior communications and agreements written or oral with respect thereto.
h) This Agreement shall inure to the benefit of each party and its respective successors in interest and permitted assigns.
i) The delay or inability of a party to perform its obligations hereunder when required (other than financial obligations including payment of amounts due), if caused by events of Force Majeure, as defined herein, shall not constitute a breach or default and shall not subject such party to liability to the other so long as such Force Majeure event exists.
Force Majeure events shall include, without limitation, civil disturbances, epidemics, natural disasters, wars, acts of terrorism, acts of God and all other such events outside the control of the parties that make it impossible for one party to comply with its obligations hereunder.
j) If any provision of this Agreement is deemed illegal, the invalidity of such provision will not affect any of the remaining provisions, and this Agreement will be construed as if the illegal provision is not contained in the Agreement.
k) This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior communications and agreements written or oral with respect thereto.
l) Sections 7, 8, 10, 11 shall survive any expiration or termination of this Agreement.