Terms and Conditions
CAREFULLY READ THE FOLLOWING PERCOLATE REFERRAL AGREEMENT! BY CHECKING THE “I AGREE” BOX IN THE WEB FORM ABOVE AND SUBMITTING THE FORM BY CLICKING THE “SUBMIT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT EITHER UPON PERSONALLY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON YOUR OWN BEHALF, OR UPON THE COMPANY OR OTHER LEGAL ENTITY ON BEHALF OF WHICH YOU ARE ACTING (HEREINAFTER “YOU” OR “YOUR”). IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE BOX AND SUBMIT THE FORM, OR YOU MAY CHOOSE TO LEAVE THIS WEBSITE PAGE (OR WEBSITE).
Percolate Affiliate Referral Agreement
This Percolate Affiliate Referral Agreement (the “Agreement”) is entered into as of the date on which You click the “I Agree” button displayed herewith between You and Percolate Industries, Inc., a Delaware corporation with offices at 107 Grand Street, 2nd Floor, New York, NY 10013 (“Percolate”). For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
- APPROVAL. The effectiveness of this Agreement is subject to Percolate’s approval in writing (via mail, fax or e-mail) of Your application for participation in the Percolate Referral Program ("Approval"), and this Agreement shall commence on the date of the Approval ("Effective Date"). Percolate may reject or decline to accept Your application for any or no reason at its sole discretion. Percolate may take screening measures of any sort in connection with Your application. If Percolate approves Your application, You may refer sales leads to Percolate during the term and in accordance with all terms and conditions of this Agreement, to enable Percolate to solicit orders for Percolate products and/or services ("Products").
- TERM AND TERMINATION.
- Term. The Term of this Agreement shall be one (1) year from the Effective Date and shall automatically renew unless either party provides sixty (60) days prior written notice of its intent not to renew.
- Termination for Convenience. Either party may terminate this Agreement for convenience by providing the other with thirty (30) days written notice of termination.
- Termination for Cause. Either party may terminate this Agreement, (a) in the event of a material breach by the other party, which the other party fails to cure within thirty (30) days of receipt of a written request to cure from the other party, or (b) if the other party becomes insolvent, makes an assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks the protection of, or has a proceeding instituted against it.
- Section 3, 4, 5d, 8, 9, 10, and 11 shall survive the termination of this Agreement. Upon termination of this Agreement for any reason, You shall immediately cease the use of all Percolate brochures, literature, documentation and other materials within Your control. Except as provided in Section 5d, You shall have no rights or claims against Percolate in connection with termination, expiration or non-renewal of this Agreement; in particular, without any limitation, You hereby irrevocably waive any rights to severance or compensation for lost opportunities or investments to the maximum extent permissible under applicable law.
- UNAUTHORIZED REPRESENTATIONS OR WARRANTIES. Your activities under this Agreement shall be limited as follows:
- You shall conduct Your business in Your own name and in accordance with the highest business standards, acting dutifully, in good faith and in compliance with all applicable laws, and not perform any act which would or might reflect adversely upon the Products or the business or integrity of Percolate.
- You shall not be, or purport to be, authorized to legally represent Percolate or to conduct negotiations on behalf of Percolate. You shall not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of Percolate or register this Agreement nor shall Percolate be liable for any acts, omissions to act, contracts, commitments, promises or representations made by You.
- You shall refrain from making any representations, warranties or other statements about Products, prices or business practices, except that You shall forward to sales leads unmodified marketing materials provided by Percolate.
- You shall refrain from making any representations, warranties or other statements that are deceptive, misleading or otherwise inconsistent with the literature distributed Percolate or its suppliers with respect thereto.
- NO LICENSE. You acknowledge and agree that no license is granted under this Agreement to use or access any Products, any of Percolate’s proprietary technologies, or any data, information or other content provided. As between the parties, Percolate retails all right, title and interest in and to the Products and all technology, data, information or other content embodied therein or provided thereby, as well as any intellectual property rights or similar rights in connection therewith, and You acknowledge that You neither own nor acquire any rights in or to the Products.
- Submission of Leads. You shall identify each potential sales lead (“Proposed Lead”) and relevant commercial conditions relating to such Proposed Lead in a Percolate Lead Form (“PLF”), a standard form generated by Percolate (and available online via a link provided to you by Percolate), or via some other method at Percolate’s option. At Percolate’s request, You shall (i) supply any additional information reasonably requested by Percolate, (ii) discuss each completed PLF in detail with Percolate, and (iii) assist Percolate in making contact with the Proposed Lead by arranging an introduction, meeting, conference call or other means of communication with the Proposed Lead.
- Acceptance of Leads. Within a reasonable period of time following Your submission of a PLF, Percolate shall review the PLF to determine whether to accept the Proposed Lead as commissionable under Section 6 below, or reject the Proposed Lead pursuant to this Section 5(b). Percolate will be under no obligation to accept any PLF submitted by You and may reject or decline to accept PLFs for any or no reason at its sole discretion, including, without limitation, because:
- The Proposed Lead was an existing customer of Percolate at the time of the submission of the PLF;
- Percolate was already involved in preliminary or advanced discussions relating to the sale of a subscription to the Proposed Lead at the time of the submission of the PLF;
- A PLF (or similar document) has previously been submitted to Percolate by You or any third party with respect to the Proposed Lead; or
- Commissionable Leads. A proposed Lead qualifies as commissionable (“Commissionable Lead”) only if:
- You have submitted a PLF for the Proposed Lead in accordance with Section 5(a); and
- Percolate has accepted the Proposed Lead as a Commissionable Lead (e.g., not rejected the Proposed Lead as set forth in Section 5(b), or otherwise).
- Percolate has executed an agreement with a Proposed Lead no later than six (6) months after Your submission
- At the time Percolate agrees to a subscription agreement and payment with a Commissionable Lead, You (Affiliate) have completed and are in compliance with any necessary additional deal agreements and obligations, such as a Targeted Purchase Agreement if you are buying Percolate on behalf of another business entity.
- Commissions and Payment. Subject to your compliance with all terms and conditions of this Agreement, Percolate will pay You commissions equal to 10% of the first year software license cost for Commissionable Leads resulting in a Standard Deal,Professional Deal, or Enterprise Deal (hereinafter defined). Commission payments (less any applicable withholding taxes, subsequently credited charges, write-offs, refunds, charge backs, or other levies) will be due to You 30 days after the date on which Percolate actually receives payment from the Commissionable Lead for the first year of the Deal Term. The Deal Term shall be defined as the length of the executed agreement for a license to Percolate’s goods or services. If the Deal Term is broken in bi-annual, quarterly, or monthly payments Percolate will compensate You following the same payment schedule. A Professional or Enterprise Deal is defined as any deal for the license to receive access to Percolate’s marketing platform between Percolate and Commissionable Lead where Commissionable Lead pays Percolate fees over $100,000 (excluding additional expenses) in the first year of the Deal Term. A Standard Deal is defined as any deal for the license to receive access to Percolate’s marketing platform between Percolate and Commissionable Lead where Commissionable Lead pays Percolate fees between $20,000 and $99,999.99 (excluding additional expenses) in the first year of the Deal Term. For the avoidance of doubt, no commissions shall be due to You for any expansions or renewals of Standard, Professional and/or Enterprise Deals and commissions shall consist of a one-time payment of the aforementioned applicable amount, or for license costs outside of the first year of the Commissionable Lead's purchase.
- Modifications. Percolate may modify the PLF submission process and the amounts and conditions relating to commissions upon seven (7) days written notice. Such changes will only affect PLF’s submitted after said seven (7) day period unless otherwise agreed in writing by the parties.
- Commissions After Termination. Except in the event of termination for breach by either party, Percolate will continue to pay You for any Commissionable Leads accepted prior to such termination, for the duration of the applicable Deal Term.
- No Other Payments. Except as expressly provided in this Section, You are not entitled to any fees, reimbursements or other payments. You shall promptly refund to Percolate any overpayments.
- Commissionable Leads. A proposed Lead qualifies as commissionable (“Commissionable Lead”) only if:
- CONFIDENTIALITY. Through out the Term You may receive Confidential Information (as hereinafter defined). Confidential Information shall all financial, business, legal and technical information of Percolate or any of its affiliates, suppliers, customers and employees (including information about research, development, operations, marketing, transactions, regulatory affairs, discoveries, inventions, methods, processes, articles, materials, algorithms, software, specifications, designs, drawings, data, strategies, plans, prospects, know-how and ideas, whether tangible or intangible, and including all copies, abstracts, summaries, analyses and derivatives thereof), that is marked or otherwise identified as proprietary or confidential at the time of disclosure, or which by its nature would be understood by a reasonable person to be proprietary or confidential. Confidential Information does not include information that (a) is previously rightfully known by You without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the receiving party, (c) is disclosed to the receiving party by a third party without breach of any separate nondisclosure obligation, or (d) is independently developed by the receiving party. Except as expressly and unambiguously allowed herein, You will hold in confidence and not use or disclose any Confidential Information. Upon the expiration or termination of this Agreement, all of the Confidential Information (including any copies) will be returned to Percolate, and You will make no further use of such materials.
- WARRANTIES. PERCOLATE MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND ABOUT ITS PRODUCTS, SOFTWARE OR ANY SERVICES PROVIDED BY PERCOLATE INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- DISCLAIMER OF DAMAGES; LIMITATION OF LIABILITY. TO THE EXTENT PERMISSABLE UNDER LAW, PERCOLATE SHALL NOT BE LIABLE UNDER THIS AGREEMENT 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 IT HAS BEEN INFORMED OF THE POSSIBILITY THEREOF. TO THE EXTENT PERMISSIABLE UNDER LAW, THE AGGREGATE LIABILITY OF PERCOLATE REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR TORT) SHALL BE LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE TO YOU UNDER THIS AGREEMENT. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
- INDEMNITY. You shall indemnify, defend and hold Percolate and its officers, directors, agents and employees from and against all claims, suits, demands, actions, proceedings, judgments, penalties, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable legal and expert witness fees) resulting from any and all third-party claims against Percolate arising from or relating to (a) any negligent representation, warranty made by You directly or indirectly relating to this Agreement or Percolate’s services, (b) Your other negligent acts or omissions in promoting Percolate or the performance of this Agreement, (c) Your breach of this Agreement, or (d) Your violation of applicable law or regulation.
- Non Exclusive Agreement. Each party acknowledges that this Agreement does not create an exclusive agreement between the parties. Each party shall have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties. Notwithstanding the foregoing, once You establish a Commissionable Lead with Percolate, You agree not to refer a competitor of Percolate to such Commissionable Lead. You agree not to enter into an agreement with a third party the effect of which would prohibit your submission of a Proposed Lead pursuant to this Agreement.
- Notice. Routine communications under this Agreement may be made by e-mail. Any legal notices under this Agreement, including without limitation notices regarding termination, breach, indemnification, or other non-routine matters, shall be effective only if delivered in writing and in compliance with this section. Notice shall be deemed to be given (a) as of the date delivered if delivered personally; (b) one (1) day after delivery if sent by overnight courier; or (c) upon receipt if sent by U.S. certified mail, return receipt requested; in either case to the respective address for the party set forth in the first paragraph of this Agreement (marked “Attention: Legal Department”) or firstname.lastname@example.org.
- Assignment. Any assignment of this Agreement by either party in whole or in part without the other party’s prior written consent, which consent shall not be unreasonably withheld, will be null and void except an assignment to a successor, that is not a competitor of the other party, made in connection with a merger or sale of all or substantially all of either parties assets or stock at an Affiliate. For purposes of this Agreement, Affiliate shall mean, as used with respect to a party, any corporation or entity worldwide that controls such party, that such party controls, or that is under common control with such party. “Control” means direct or indirect ownership of fifty percent (50%) or more of the common stock or other voting interests in an entity.
- Entire Agreement. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement may be executed in counterparts, including by electronic signature, pdf or facsimile, each of which will be deemed an original, but all of which will constitute one and the same document.
- Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has the authority to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose without such party’s prior consent.
- Publicity. Except for the purposes of fulfilling each parties obligations herein, neither party shall use the other party’s trademarks or make any public statements concerning this Agreement or the relationship between the parties without the other party’s prior written consent, which shall not be unreasonably withheld. If either party desires to issue a press release regarding the arrangement contemplated hereunder, it shall not do so without the other party’s prior written approval.
- Governing Law. This Agreement will be governed by the laws of the state of New York without regard to conflict of laws provisions. All rights and remedies of the parties under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies.
- Equitable Relief. Either Party may seek equitable relief from a court at any time. Except for an action to obtain equitable relief, neither Party may commence a civil action with respect to the matters submitted to mediation until after completing mediation.
- Arbitration. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives. Any dispute arising out of or relating to this Agreement, or the breach, termination or validity thereof, that has not been resolved by negotiation thirty (30) days after a party’s request for negotiation, shall be settled by final, binding arbitration under the rules of the then-current JAMS Streamlined Arbitration Rules & Procedures, http://www.jamsadr.com/rules/streamlined.asp (“JAMS”); provided however, either party retains the right to apply to any court of competent jurisdiction worldwide to protect and enforce its intellectual property and other rights. The arbitrator will be able to award damages only if consistent with the terms of this Agreement. The arbitration will be held in New York, New York and the laws of the State of New York, USA shall govern this Agreement, without regard to any conflicts of laws rules. The parties will share equally the arbitrator's fees and expenses pending the resolution of the arbitration unless the arbitrator, pursuant to its right but not its obligation, requires the non-prevailing party to bear all or any portion of the costs of the prevailing party, including its reasonable attorney’s fees and the cost of the arbitrator. The decision of the arbitrator will be final and may be sued on or enforced by the party in whose favor it runs in any court of competent jurisdiction at the option of such party.
- Force Majeure. Neither party shall be liable for a failure to perform any of its obligations hereunder when such failure is caused by or results from (i) strike, blacklisting, boycott or sanctions however incurred; or (ii) acts of God, public enemies, authority of law, embargo, quarantine, riot, insurrection or war.
- Waiver. A party’s waiver of any breach of this Agreement by the other party will not constitute a waiver of any rights or any subsequent breach of the same or different provision thereof. To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving party. Where written consent is required, such consent must be in a writing signed by a duly authorized representative of the consenting party, except where e-mail consent is expressly permitted.
BY CLICKING "I AGREE" YOU REPRESENT THAT (1) YOU HAVE SUBMITTED COMPLETE AND ACCURATE INFORMATION IN RELATION TO WITH YOUR APPLICATION AND (2) YOU ARE ENTERING INTO THIS AGREEMENT ON YOUR OWN BEHALF OR THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR OTHER LEGAL ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT WISH TO ENTER INTO THIS AGREEMENT ON YOUR OWN BEHALF, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, YOU WILL NOT BE ELIGIBLE FOR PARTICIPATION IN PERCOLATE’S REFERRAL PROGRAM.