This REFERRAL AGREEMENT (the “Agreement”) governs your participation in FiveStars Loyalty, Inc.’s (“FiveStars”) customer referral program (“Referral Program”). This Agreement governs all aspects of the Referral Program, including, but not limited to, customer referrals provided to FiveStars, any payment of referral fees, and your use of FiveStars’ online Qualified Referral (as defined in Section 3) registration system; any conflicting or additional terms, conditions, or obligations are of no force or effect unless agreed to in a writing signed by the parties. This Agreement is a legally binding contract between the entity accepting it (“you” or “your” or “Referrer”) and FiveStars. You must accept this Agreement prior to participating in the Referral Program. FiveStars may amend or otherwise update this Agreement at any time in its sole discretion, provided that FiveStars will notify you in writing of such amendments or updates. By clicking “I Accept,” (whether to accept this agreement for the first time or upon FiveStars notification of amedments or updates) you are agreeing to be bound by the terms of this Agreement. Do not click “I Accept,” use the FiveStars online Qualified Referral registration system, or register as a referral partner of FiveStars if you are unwilling or unable to be bound by this Agreement. If you are entering into this Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind such entity to the terms and conditions of this Agreement.
The parties agree as follows:
1. General Scope. Referrer shall use its best efforts to promote and solicit referrals for the sale of FiveStars products and the provision of FiveStars services related thereto, as directed by FiveStars from time to time (“Products”) and otherwise reasonably assist and support FiveStars throughout the Product sales cycle during the term of this Agreement. In its efforts, Referrer will use the then-current names for the Products and will not add to, delete from or modify any sales or marketing documentation or forms provided by FiveStars. FiveStars reserves the right to change or modify or discontinue any of the Products at any time. FiveStars may modify pricing of the Products at any time. Nothing in this Agreement shall be construed as limiting in any manner FiveStars’s marketing or distribution activities or its appointment of other dealers, distributors, licensees, agents or representatives of any kind. Referrer acknowledges and agrees that FiveStars is not bound to any price (or any other term) with respect to the sale of any Product until it has accepted such sale and Referrer will not represent or imply anything to the contrary to any party.
2. Eligibility. In order to participate in the Referral Program, Referrers must be (1) residents of Canada or the United States; (2) at least 18 years old; (3) not an employee of FiveStars; and (4) not prohibited from participating in the Referral Program by any applicable law or contractual agreement with a third party.
3. Responsibilities. Referrer shall comply with good business practices and all applicable laws and regulations. During the term hereof, Referrer shall not market, promote, sell, lease, solicit or procure orders for or otherwise represent any product or service in direct competition with any of the Products. Referrer shall (1) conduct its business in a manner that favorably reflects upon the Products and FiveStars; (2) disclose that it is receiving a commission for referrals in accordance with applicable advertising and marketing laws; and (3) refrain from making any false statement or misrepresentation about FiveStars or its Products.
4. Qualified Referrals. Upon identifying a potential Qualified Referral, Referrer shall notify FiveStars of the potential Qualified Referral by navigating to a URL provided by FiveStars and submitting the requested information related to each potential Qualified Referral on such URL. or as otherwise specified by FiveStars. FiveStars shall notify Referrer within sixty (60) days of receiving such notice if a customer or prospect qualifies as a Qualified Referral and whether FiveStars accepts such Qualified Referral. Upon receipt of notice from FiveStars that the prospective customer is an accepted Qualified Referral, the Referrer will arrange an introductory meeting between the Qualified Referral and FiveStars as soon as practical. For the purposes hereof, a “Qualified Referral” shall mean a customer or prospect: (i) that is not a current customer or prospect of FiveStars or its resellers or sales agents at the time of the referral; (ii) to whom Referrer either has made a sales call or submitted a proposal within ninety (90) days prior to the referral; and (iii) that has been referred to FiveStars in compliance will all of the terms of this Agreement. Approval and acceptance of any Qualified Referral or any sale of Product shall be at FiveStars’s sole discretion, and FiveStars may reject any such Qualified Referral or any sale for any reason.
5. Fee. For each Qualified Referral that executes a definitive agreement with FiveStars to purchase a Product within six (6) months of completion of the lead process (each a “Converted Referral”), FiveStars shall pay the Referrer a one-time payment “Commission” as follows: (a) if Referrer has, in accordance with this Agreement, referred ten (10) or less Locations (as defined in this Section below) that continue to have current subscriptions with FiveStars, three hundred United States dollars ($300) per Location; or (b) if Referrer has, in accordance with this Agreement, referred eleven (11) or more Locations that continue to have active subscriptions with FiveStars, five hundred United States dollars ($500) per Location; or (c) if Referrer has, in accordance with this Agreement, referred twenty-five (25) or more Locations that continue to have active subscriptions with FiveStars, seven hundred United States dollars ($700) per Location. For the purposes of this Agreement, a “Location” means each separate, permanent address of a Converted Referral for which such Converted Referral has purchased a subscription to the Products from FiveStars. Notwithstanding the foregoing, Commissions shall not exceed three thousand United States dollars ($3,000) per Converted Referral. FiveStars will pay Referrer Commissions for each Converted Referral within thirty (30) days of the end of the month after FiveStars is paid. For the avoidance of doubt, no Commissions shall be paid for Converted Referrals for which FiveStars receives no payment. FiveStars may change the Commission rate or structure at any time upon written notice (email shall suffice) to Referrer.
6. Taxes. The Commission is inclusive of applicable federal, provincial, state, local or other governmental sales, goods and services, harmonized or other taxes, fees or charges imposed by a government authority (“Taxes”). Referrer agrees and acknowledges that it is responsible for the report and remitting of all applicable Taxes that arise from the Commission. Notwithstanding the foregoing, FiveStars may withhold from the Commission any amounts required to be withheld by the appropriate government authority, provided that FiveStars remits such amounts to the appropriate government authority on behalf of the Referrer and supplies Referrer with evidence of such payment. The Referrer shall provide FiveStars with a valid registration number if registered for the purposes of Part IX of the Excise Tax Act (Canada).
7. Trademarks, Trade Names and Other Designations. Subject to the terms of this Agreement, FiveStars grants Referrer the right to use and display the FiveStars trademarks, tradenames and other designations of source (“Marks”) as they may appear with respect to the Products solely for the purposes set forth in this Agreement. All such use of the Marks shall be in accordance with the FiveStars Mark usage guidelines provided to Referrer from time to time and will enure to the benefit of FiveStars. Referrer undertakes and agrees to reproduce faithfully all Marks and proprietary notices, slogans, designs and distinct advertising as may appear on any documentation or other material with respect to Product. Notwithstanding the foregoing, any such use or proposed use of the Marks shall be presented to FiveStars for approval not less than ten (10) business days prior to the intended date of use. Referrer will not use, register or take other action with respect to any Mark anywhere in the world, except to the extent authorized in advance writing by FiveStars. Other than as expressly and unambiguously provided in this Agreement, Referrer shall not have any right to use the Marks.
8. Warranty Disclaimer. NEITHER FIVESTARS NOR ITS SUPPLIERS OR LICENSORS MAKE ANY EXPRESS OR IMPLIED WARRANTIES, CONDITIONS OR REPRESENTATIONS WITH RESPECT TO THE PRODUCTS OR THE SUBJECT MATTER OF THIS AGREEMENT AND SPECIFICALLY DISCLAIMS ALL WAR RANTIES OR CONDITIONS OF ANY KIND, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. REFERRER SHALL MAKE NO REPRESENTATION, GUARANTEE, WARRANTY OR CONDITION CONCERNING THE PRODUCT EXCEPT AS EXPRESSLY AUTHORIZED IN ADVANCE BY FIVESTARS IN WRITING.
9. Indemnity. Referrer shall indemnify, defend and hold FiveStars harmless against any and all third-party proceedings, causes of action, suits, damages, losses, liability, costs and expenses (including reasonable legal fees) whatsoever that may arise, either directly or indirectly, in connection with any breach by Referrer of this Agreement, or any misuse, unauthorized use or violation of the Marks.
10. Relationship of Parties. The parties hereto expressly understand and agree that each party is an independent contractor in the performance of each and every part of this Agreement. Referrer shall be solely responsible for all of its employees and agents and its labor costs and expenses arising in connection therewith and for any and all claims, liabilities or damages or debts of any type whatsoever that may arise on account of Referrer’s activities, or those of its employees or agents, in the performance of this Agreement. Referrer does not have the authority, right or ability to bind or commit FiveStars in any way (including, without limitation, by agreeing to sales of Products) and will not attempt to do so or imply that it may do so. Referrer will indemnify FiveStars from any and all claims, liabilities, damages, debts, settlements, costs, attorneys’ fees, expenses, and liabilities of any type whatsoever that may arise on account of Referrer’s activities, or those of its employees or agents, including without limitation, providing unauthorized representations or warranties to its customers or breaching any term, representation or warranty of this Agreement.
11. Termination.
a. This Agreement shall commence on the date of Referrer’s acceptance of this Agreement (“Effective Date”) and continue for a period of one (1) year (“Term”). Unless terminated earlier as provided herein, this Agreement shall automatically renew on each anniversary of the Effective Date for period of one (1) year. Either party may terminate this Agreement at any time, with or without cause, upon thirty (30) days written notice.
b. This Agreement may be terminated by FiveStars for cause immediately upon the occurrence of any of the following events: (1) if Referrer ceases to do business, or otherwise terminates its business operations; (2) if Referrer violates any guidelines provided by FiveStars or (3) if Referrer breaches any provision of this Agreement and fails to fully cure such breach within fifteen (15) days of written notice from FiveStars describing the breach.
c. Neither party shall incur any liability whatsoever for any damage, loss or expenses of any kind suffered or incurred by the other party arising from or incident to any termination of this Agreement which complies with the terms of the Agreement whether or not the terminating party is aware of any such damage, loss or expenses.
d. Upon termination or expiration of this Agreement for any reason whatsoever, Referrer (i) shall immediately discontinue any use of the name, logotype, Marks or slogans of FiveStars, (ii) shall immediately discontinue all representations or statements from which it might be inferred that any relationship exists between the parties, (iii) will cease to promote, solicit orders for or procure orders for the Product, (iv) will immediately return to FiveStars all Proprietary Information (as defined below) and any other information or materials of FiveStars in its possession, custody or control in whatever form held (including copies or embodiments thereof relating thereto). Notwithstanding the foregoing, Sections 510 and the right to payments accruing prior to the termination date shall survive termination or expiration of this Agreement.
12. Proprietary Rights. The Referrer acknowledges that, in the course of performing its duties under this Agreement, it may obtain business, technical or financial information relating to FiveStars, all of which is confidential and proprietary (“Proprietary Information”). The Referrer and its employees and agents shall, at all times, both during the term of this Agreement and after its termination, keep in trust and confidence all such Proprietary Information, and shall not use such Proprietary Information other than in the course of its duties as expressly provided in this Agreement; nor shall the Referrer or its employees or agents disclose any such Proprietary Information to any person without FiveStars’s prior written consent. The Referrer shall not be bound by this Section with respect to information it can document has entered or later enters the public domain as a result of no act or omission of the Referrer, or is lawfully received by the Referrer from third parties without restriction and without breach of any duty of nondisclosure by any such third party. Referrer acknowledges and agrees that FiveStars owns all right, title and interest in and to the Products and all related Proprietary Information, documentation, sales and marketing materials, and all Marks, as well as all intellectual property rights related to the foregoing.
13. Liability Limitation. EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER FIVESTARS NOR ITS SUPPLIERS OR LICENSORS WILL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR (II) FOR ANY AMOUNT IN EXCESS OF THE AGGREGATE AMOUNT OF FEES PAID TO REFERRER BY FiveStars IN THE TWELVE MONTHS PRIOR TO THE DATE ON WHICH THE CLAIM AROSE.
14. SMS Messaging. By providing FiveStars with Referrer’s mobile phone number(s) on, before, or after execution of this Agreement, Referrer is expressly opting-in to receive SMS and text messages from FiveStars relating to the parties’ activities under this Agreement and otherwise is accordance with applicable laws. Referrer acknowledges that messaging and data rates may apply depending on Referrers mobile phone service provider and that Referrer is solely responsible for paying for any such SMS and text messaging fees. Referrer may opt-out of receiving SMS and text messages at any time by replying ‘STOP’ to any SMS or text message sent by FiveStars.
Miscellaneous. Referrer may not assign this Agreement nor any right or obligation herein without the prior written consent of FiveStars and any purported transfer or assignment will be void. FiveStars may assign this Agreement without consent to any successor to all or substantially all of its assets or business. Except as otherwise provided herein, this Agreement shall be binding upon and inure to the benefit of the permitted successors and assigns of the parties. If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Except as otherwise expressly provided herein, any provision of this Agreement may be amended or waived only with the written consent of both parties. This Agreement shall be governed by and construed under the laws of the State of California without regard to the conflicts of law provisions thereof. This Agreement is the sole agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements or discussions between the parties with respect thereto.