SWAGGER - REFERRAL PROGRAM AGREEMENT
This Referral Program Agreement ("Agreement") is entered into by Dragit, LLC ("Company") and the referring party executing this Agreement ("Participant"). This Agreement governs Participant’s participation in the Company Referral Program described herein (the "Program"). Participant represents and warrants that: (i) the individual accepting this Agreement has full legal authority to enter into this Agreement on behalf of Participant; (ii) Participant has read and understands the Agreement, and (iii) Participant agrees to the terms of this Agreement. If the individual accepting this Agreement does not have legal authority to enter into this Agreement on behalf of Participant or Participant does not agree to these terms, please do not click to accept this Agreement below. This Agreement is effective between Participant and Company as of the date Participant electronically accepts this Agreement.
WHEREAS, the Company provides customized branded merchandise, and wishes to receive referral services from Participant from time to time and Participant is willing to provide such referral services (the “Services”), and Company and Participant wish to enter into this Agreement to set forth the terms and conditions on which Services will be provided.
NOW, THEREFORE, the Company and Participant hereby mutually covenant and agree as follows:
"Custom URL" means the unique URL or Domains Widget to be provided by Company to Participant and which will correlate Eligible Referrals submitted by Participant to Participant’s Program account.
"Eligible Referral" means an eligible net new customer lead for the direct purchase of the Services directly from Company, excluding Ineligible Referrals.
“Incentives” means redeemable coupons, promotion codes, or other incentives for use by the Participant in promoting and marketing the Services under this Agreement.
"Ineligible Referrals" means government officials, government owned or -controlled entities and any of their employees, political parties and candidates, Services customers of resellers, any other individuals or entities already in Company’s systems, and Company’s representatives, agents or employees.
"Participant" means a member of the Program with a primary place of business or residence that is a business, entity, or other individual with a valid tax ID number but may not include (i) government officials, government owned or -controlled entities and any of their employees, (ii) political parties and candidates, and (iii) representatives, agents, or employees of Company.
"Program Guide" means any set of applicable Program terms in addition to this Agreement that Company may make available to Participant via the Resource Portal and that will govern Participant's continued participation in the Program.
"Referral" is a new customer lead for Services submitted by Participant, via email, social media, text and/or a Participant Custom URL to Company.
"Referral Fees" means the fees paid by Company to Participant for Eligible Referrals that result in a Valid Transaction.
"Resource Portal" means the website or portal provided by Company to Participant containing Program resource tools and information.
"Valid Transaction" is a closed sale for Services originating following a referral via email, social media, text and/or a Participant’s Custom URL and which is made directly between an Eligible Referral and Company. And, this is done in compliance with the requirements for payment of Referral Fees.
“Account” is the specific business unit in which the participant sent a new customer lead to the company.
“Active Account” is an account that makes at least one single order of at least $1,000 (excluding taxes, shipping and other fees) within a 12-month period.
“Inactive Account” is an account that does not make a single order of at least $1,000 (excluding taxes, shipping and other fees) within a 12-month period.
2. Program Overview. In compliance with this Agreement, Participant will promote the Services only to Eligible Referrals. Participant will not market the Services to any Ineligible Customers. Company will provide Participant with a Custom URL for the purpose of correlating any Eligible Referrals resulting in a Valid Transaction under this Agreement. Company may issue Incentives to Participant in accordance with the restrictions and guidelines in this Agreement. As applicable, and subject to the requirements herein, Participant may include on its website and in its marketing materials for the Services the Custom URL provided by Company. A Valid Transaction must always originate from Participant’s Custom URL to qualify for Referral Fees.
Company may elect to create and provide to Participant an applicable Program Guide which may include updates regarding applicable Referral Fees, Incentives and other relevant Program details. The terms of any such Program Guide are made part of this Agreement and will control over any conflicting term in the body of this Agreement, and the provision of Services by Participant following the publication or changes made by Company of a Program Guide will constitute Participant’s agreement to such changes.
3. Distribution of Custom URL and Incentives. Participant will use commercially reasonable efforts to distribute and make available the Custom URL and Incentives: (a) only to Eligible Referrals; and (b) only after Company has approved the distribution by providing Participant with the Custom URL and any applicable Incentives. All marketing materials (including without limitation the text of email distributions, if any) must be (i) strictly consistent with any Program Guide instructions provided by Company, (ii) compliant with the terms and conditions of this Agreement and all applicable marketing, privacy and data protection laws and governmental regulations. Any e-mail distribution must: (x) offer recipients the ability to opt-out of future Participant communications; and (y) contain the Company governing terms and conditions for any Incentives when offered. At Company’s request, Participant will block distribution of Custom URL and Incentives to parties as Company’s designates in its sole discretion, consistent with applicable laws.
4. Compliance. In addition to the other legal requirements in this Agreement, Participant expressly agrees to comply with the following:
4.1. Anti-Bribery Laws and Reporting. Participant will comply with all applicable commercial and public anti-bribery laws ("Anti-Bribery Laws"), including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, which prohibit corrupt offers of anything of value, either directly or indirectly to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. "Government officials" include any government employee; candidate for public office; and employee of government-owned or government-controlled companies, public international organizations, and political parties. Furthermore, Participant will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. If Participant becomes aware of suspicious, illegal or fraudulent activity occurring in relation to the Services or the Program, Participant will report the suspicious or fraudulent activity to Company within 24 hours of identifying the suspicious or fraudulent activity.
4.2 Export Control Laws. Participant will comply with all applicable export and re-export control laws and regulations, including (i) the Export Administration Regulations ("EAR") maintained by the U.S. Department of Commerce, (ii) trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control, and (iii) the International Traffic in Arms Regulations ("ITAR") maintained by the U.S. Department of State.
4.3 Acceptable Use Policy. Participant will not send, post, transmit or otherwise use any Company provided content, including the Company name, Program materials or the Services, in connection with any materials, sites or otherwise that: (i) will generate or facilitate unsolicited bulk commercial emails; (ii) will, or otherwise encourage, the violation of the legal rights of others; (iii) is for an unlawful, invasive, infringing, defamatory, or fraudulent purpose; (iv) contains obscene or pornographic content.
4.4 Certification. Participant represents, warrants and certifies to Company that: (i) it has legal authority to enter into these terms and participate in the Program; (ii) its employment contract (if applicable) does not restrict it from participating in the Program, and where Participant is also a representative, agent or an employee of a Company reseller it has also obtained a valid consent from its employer to participate; (iii) each Referral submitted by Participant will be reasonably made in good faith as an Eligible Referral; and (iv) it will comply with all applicable laws and governmental regulations, including without limitation, as described in this Section 4 above.
5. Termination and Modification of Terms. Company may at any time and in its sole discretion: (i) modify or update the terms of, including but not limited to, the Program, this Agreement, Program Guides, Incentives (and their governing terms and conditions) and will make such modified or updated terms available in writing, or (ii) revoke a Participant's account, and/or terminate Participant’s participation in the Program in its entirety. If Company provides Participant with an updated Custom URL, Program Guide or Incentives (and applicable terms and conditions), Participant agrees will begin using, and will be subject to, such updated versions no later than 30 days after receiving them.
6. Brand Features. Each party will own all right, title and interest to its own respective trade names, trademarks, service marks, logos and domain names it secures from time to time ("Brand Feature(s)"). Subject to the terms and conditions of this Agreement (including without limitation the following sentence), Company grants to Participant a nonexclusive, revocable, nontransferable and non-sublicensable license during the Term to display Company’s Brand Features only to the extent Brand Features are provided by Company for use with the Program as indicated through the Resource Portal and solely for the limited purpose of promoting the Services consistent with this Agreement. Additionally, all use of Company’s Brand Features is at Company’s sole discretion and subject to Company’s then-current Brand Feature use guidelines.
Subject to the terms and conditions of this Agreement or any Program Guide, Participant grants to Company a nonexclusive, revocable, nontransferable and non-sublicensable license during the Term to display Participant’s Brand Features solely for the purpose of marketing the Program or as otherwise mutually agreed upon (email permitted).
7. Payment of Referral Fees.
7.1 Referral Fees. Company will pay Participant a Referral Fee for each Eligible Referral’s account that results in a Valid Transaction, to be paid on all eligible orders. Participant will receive five percent (5%) of Total Sales (excluding taxes, shipping and other fees) in which the sale is completed within 24 months of the first Eligible Referral. Participant will receive 2.5% of Total Sales (excluding taxes, shipping and other fees) in which the sale is completed from month 25 and beyond of the first Eligible Referral as long as the account stays an Active Account. An eligible account that purchases $100,000 in branded merchandise in a 24-month timeframe from the time of Eligible Referral, participant would receive $5,000. The Referral Fee will be paid within 30 days after the referred account has paid the Company in full. No Referral Fees shall be due on outstanding or unpaid customer invoices. A Valid Transaction will only take place when an Eligible Referral: (a) purchases directly from company (b) does not already have, directly or indirectly, an account with company; (c) has been invoiced for and from whom Company has received payment for; and (d) where all the foregoing occurs during Participant’s period of participation in the Program. (e) purchase is a direct result of participant’s referral Company may, at its sole option, prospectively increase or decrease Referral Fees amounts by providing written notice (email/electronic communication permitted) to Participant, or updating this Agreement and/or any applicable Program Guide. Company reserves the right, in its sole discretion not to pay any Referral Fees to Participant where Company determines Participant’s actions are not consistent with the intent of this Program or in violation of the terms hereof. Referral fees will not be paid on any account that becomes an Inactive Account.
7.2. Incentives. Company may elect to provide Participant with Incentives to offer to its Eligible Referrals from time to time. Use of any applicable Incentives will be subject to the governing terms and conditions as provided by Company.
7.3. Payment Process. In order for Participant to receive any Referral Fees Participant must first complete the required vendor payment form as required by Company and maintain a valid banking account within the United States. Company will pay Participant the Referral Fees in the form of a direct deposit in U.S. dollars to the banking account as indicated by Participant via the Program registration process and completion of the required vendor payment form. The Referral Fees above are exclusive of taxes, and Company might withhold or charge taxes if required by law. Additional payment terms may need to be accepted by Participant for the payment of Referrals Fees to Participant’s bank account. Referral fees will be issued to Participant on a monthly basis. All amounts referenced or payable under this Agreement are in U.S. Dollars unless Company notifies Participant otherwise.
Participant is solely responsible for ensuring its account information is accurate and current. Company will not be responsible for any Referral Fee payments not received due to Participant failing to provide current, accurate and complete account information for payment, or any other relevant or required information.
Company reserves the right, in its sole discretion, to change the terms and conditions of the payment process to Participant.
Participant will not, and will not allow any third party to: (a) "frame," minimize, remove, or otherwise inhibit, the full and complete display of any Company web page; (b) cause any hyperlinks to web pages on the Company website to create a new browser window; or (c) otherwise display Company web pages or Brand Features in a distorted or diluted fashion.
9. Term; Termination.
The term of this Agreement (“Term”) will continue until terminated by either party as provided herein. Either party may terminate this Agreement immediately with or without cause upon written notice to the other party (email notice permitted). Upon any termination or expiration of this Agreement, all licenses and rights granted will terminate and each party will have no further right to use the Brand Features of the other party. In the event of a termination, Participant will only receive Referral Fees that were earned in full for a Valid Transaction that occurred prior to the effective termination date.
10. Confidential Information.
Each of the parties agrees that, during the Term and at all times after the termination of this Agreement for whatever reason, they will treat as confidential and maintain in confidence all information relating to the business of the other party, including without limitation, the terms, conditions or existence of the Program, the Services, the identity of the customers and suppliers of the parties, the parties' arrangements with such suppliers and customers, and technical data relating to the respective parties’ products and services. In addition, each party agrees that, without the prior written approval of the other party, no party will disclose any such information at any time to any person, corporation, association or other entity except authorized personnel of the other parties or their subsidiaries, banks, attorneys, investors, accountants, or other entities related to the parties with a need to know such information and shall not use any such confidential information for any purpose other than in furtherance of this Agreement. Upon the termination of this Agreement for any reason, the parties will not take or retain any records, files or other documents, or copies thereof, relating in any way to the business operations of the other party, excepting only those required to be maintained by applicable law. It is expressly agreed that the remedy at law for breach of the agreements set forth in this Section may be inadequate and that each offended party shall, in addition to any other available remedies (including, without limitation, the right of offset), be entitled to seek injunctive relief to prevent the breach or threatened breach hereof, without having to post bond or prove money damages.
11. Disclaimers; Limitation of Liability.
EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANT-ABILITY AND FITNESS FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROGRAM AND CUSTOM URL IS PROVIDED "AS IS" AND AT PARTICIPANT’S OPTION AND RISK AND COMPANY DOES NOT GUARANTEE ANY RESULTS. EXCEPT FOR (I) BREACHES OF SECTION 4 (COMPLIANCE); (ii) BREACHES OF SECTION 6 (BRAND FEATURES); AND (iii) SECTION 12 (INDEMNIFICATION), TO THE FULL EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (A) NO PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT OR ARISING OUT OF PERFORMANCE OF THIS AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY AND (B) NO PARTY MAY BE HELD LIABLE FOR DAMAGES UNDER THIS AGREEMENT IN THE AGGREGATE OF MORE THAN THE AMOUNT PAID BY COMPANY TO PARTICIPANT UNDER THIS AGREEMENT IN THE 3 MONTHS BEFORE THE DATE OF THE ACTIVITY GIVING RISE TO THE FIRST CLAIM.
Participant will defend, indemnify and hold harmless Company, its affiliates, directors, members, managers, officers and employees against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising out of: (a) Participant’s participation in the Program; (b) Participant’s website(s), Participant Brand Features and Company’s use of any Participant content (provided that such use complies with the requirements of the Agreement); and (c) Participant’s breach of any representation or warranty in this Agreement.
13. Representations and Warranties.
Participant warrants that (a) Participant will use all information provided by Company (including without limitation the Company Brand Features) in a manner that complies with applicable law; (b) Participant will clearly and conspicuously display the text of the applicable terms and conditions for Incentives provided to Eligible Referrals in accordance with this Agreement; and (c) Participant will conduct all activities in furtherance of this Agreement in accordance with applicable law.
The parties shall have the right to assign its rights, but not its obligations, under this Agreement to any affiliate of such party and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by or against said assigns. Otherwise, no assignment of this Agreement shall be valid without the prior written consent of the other party (email permitted).
15. Governing Law; Consent to Jurisdiction.
This Agreement shall be deemed to have been made under, and shall be construed and interpreted in accordance with, the laws of the State of Arizona, excluding any conflicts-of-law rule or law which might refer such construction and interpretation to the laws of another state, republic or country. The parties hereby submit to the jurisdiction of the state and federal courts in the County of Maricopa, State of Arizona, and waive any right to which they might be entitled to submit any dispute hereunder to the courts of another state, republic or country. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL
The failure of any party to insist upon strict performance of any provision hereof shall not constitute a waiver of, or estoppel against asserting, the right to require such performance in the future, nor shall a waiver or estoppel in any one instance constitute a waiver or estoppel with respect to a later breach of a similar nature or otherwise.
The remedies accorded to the parties by this Agreement are in addition to, and not in lieu of, all other remedies to which the parties may be entitled at law or in equity.
18. Inconsistent Obligations.
Each party represents and warrants that, at the date of this Agreement, it has no obligations that are inconsistent with those arising out of this Agreement.
19. Sole Agreement.
All prior negotiations and agreements between the parties hereto relating to the Program and Services contemplated hereby are superseded by this Agreement, and there are no representations, warranties, understandings or agreements with respect to such transactions or services other than those expressly set forth herein.
If any of the terms or conditions of this Agreement are held by any court of competent jurisdiction to be unenforceable or invalid, such unenforceability or invalidity shall not render unenforceable or invalid the entire Agreement. Instead, this Agreement shall be construed as if it did not contain the particular provision or provisions held to be unenforceable or invalid, the rights and obligations of the parties shall be construed and enforced accordingly, and this Agreement shall thereupon remain in frill force and effect.