Referral Partner Agreement
This Referral Partner Agreement (the “Agreement”) is a legal agreement between you (“Referral Partner”) and Eva Commerce Inc, a California corporation with offices at 10352 Signature Point, STE 50, San Diego, CA 92130 (“Eva”), herein being collectively referred to as the “Parties.”
BY SUBMITTING A FORM ON THE “REFER A CLIENT” PAGE, YOU AGREE TO AND ARE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. THIS AGREEMENT INCLUDES THE TERMS AND CONDITIONS BELOW AND ANY DOCUMENTS OR MATERIALS REFERENCED HEREIN.
1. Purpose. Referral Partner may submit leads of potential new customers (each a “Prospective
End Customer”) to Eva for the purpose of assisting Eva to win new business. For the sake of clarity, any use of the term “partner” in this Agreement or in connection with the relationship created by this Agreement shall in no way imply that the Parties are engaged in a joint venture or that either Party otherwise has any ownership interest in, or common enterprise with, the other Party.
2. Qualification Process. Referral partner shall submit leads to Eva via Referral partner affiliate
link, email or through an online form on the “Refer a Client” webpage. Eva shall notify Referral Partner, via email, if a lead has been “rejected” within two (2) business days of submission of the form and the reason for rejection. Eva may reject any lead for any reason at its sole discretion. In order for Referral Partner to receive a referral commission (a “Referral Fee”), Eva and Prospective End Customer must enter into a valid and binding subscription agreement within one hundred eighty (180) days of Eva’s email notification to Referral Partner of its acceptance of the Prospective End Customer lead.
3. Referral Fees and Payment. Eva shall pay to Referral Partner the following Referral Fees: 10% of all Subscription Fee Revenue received by Eva for the Platform Subscriptions pursuant to a Consummated Transaction. “Subscription Fee Revenue” shall mean the fees paid to Eva by Prospective End Customer for the first 12 months of Prospective End Customer’s subscription to Eva’s Product Offerings, minus any Incidental Expenses and excluding any Add-on Sales. “Incidental Expenses” shall mean (a) costs attributable to sales, use, value-added, excise and other taxes, customs duties and other governmental charges; and (b) returns or credits. “Add-on Sales” shall mean additional purchases of Eva’s Product Offerings made following Prospective End Customer’s initial purchase. The Referral Fee is payable no later than thirty (30) days after the date on which Eva receives payment from the Prospective End Customer in connection with the Consummated Transaction. Eva will pay to the Referral Partner during a period between the 15th – 30th of each calendar month. The Referral Partner shall be responsible for all taxes, duties, VAT charges and similar taxes and fees which are levied or imposed by reason of Referral Fees paid to Referral Partner, including but not limited to taxes on Referral Partner’s income.
4. Unauthorized Representations; No Authority. Referral Partner shall refrain from making any representations, warranties or guarantees to Prospective End Customers or to the trade with respect to the specifications, features or capabilities of Eva’s product offerings that are deceptive, misleading or otherwise inconsistent with the literature distributed by Eva or its suppliers with respect thereto. Referral Partner is not the agent of Eva and has no authority to execute contracts on Eva’s behalf. Referral Partner agrees to take all commercially reasonable steps to preserve and protect the goodwill and reputation of Eva. Referral Partner shall not engage in any conduct which may damage Eva’s reputation. This Agreement is non-exclusive. The Parties understand and agree that Eva has the right to solicit Prospective End Customers directly and to appoint any number of additional representatives or agents to provide leads to Eva.
5. Limitation of Liability. EXCEPT FOR REFERRAL PARTNER’S BREACH OF SECTION 4
(“UNAUTHORIZED REPRESENTATIONS; NO AUTHORITY”) OR SECTION 8 (“COMPLIANCE”), (i) NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF AND (ii) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED TO THE LESSER OF $10,000 OR THE TOTAL AMOUNT PAID OR PAYABLE BY THE OTHER PARTY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY.
6. Term and Termination. The term of this Agreement shall begin on the Effective Date and shall continue until terminated in accordance with the terms of this Section 7. Either Party may terminate this Agreement for its convenience at any time by providing the other Party with fourteen (14) days advance written notice of termination via email or letter. Sections 2, 3, 6, 7, 8 and 9 shall survive the termination of this Agreement. Any referrals received and accepted by Eva prior to the effective date of termination shall be honored and payment made pursuant to the terms of this Agreement.
7. Compliance. Referral Partner shall comply with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and the anti-corruption laws of other countries, to the extent applicable. Referral Partner hereby represents and warrants that, in its performance under this Agreement Referral Partner has not, and will not at any time, directly or indirectly (through a subcontractor or other third party), pay, offer, give or promise to pay or give, or authorize the payment of, any monies or any other thing of value to influence the improper performance of any individual government officials and employees of state-owned enterprises. Referral Partner shall promptly inform Eva in writing upon becoming aware of any violations of laws in connection with this Agreement. Referral Partner hereby acknowledges and agrees that any violation by Referral Partner of this Section will constitute a material breach of this Agreement. In the event of such a violation, Eva will have the right to terminate this Agreement, without any liability whatsoever to Referral Partner, immediately upon providing written notice of termination to Referral Partner. Termination of this Agreement by Eva under this section shall be in addition to, and not in lieu of, Eva’s other legal rights and remedies.
8. General Provisions. The Parties are independent contractors. Referral Partner shall not have, and shall not represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of Eva. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. This Agreement was entered into in San Diego, California and will be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules and the U.N. Convention on the International Sale of Goods.
Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The Parties agree, in consideration of this Agreement as follows:
a) Referral Partner will, at its discretion, refer qualified clients to Eva by written introduction, which it believes will benefit from Eva’s services.
b) Eva will collaborate on shared media and provide materials needed to promote Eva’s services on an ongoing basis in a reciprocal fashion.
c) Eva will take due care managing the relationships with the referred clients, recognizing that each is an extension of the other’s brand.
d) Eva is not under obligation to work with any referred party and does so at its sole discretion.
e) Eva agrees to provide an accounting of fees earned under this arrangement at such times as the other party may request.
f) The terms of this agreement are confidential and may not be disclosed to any third party.
This Agreement shall be effective as of the date of such form submission..