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This Referral Agreement (“the Agreement”) is made and entered into between Haus Analytics, Inc. (“Haus”) and you (“Referrer”).
Referrer wishes to refer potential opportunities with customers to Haus, and Haus is willing to compensate Referrer for such referrals, on the terms and conditions set forth in this Agreement. NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and other valuable consideration, the receipt and sufficiency of which are acknowledged, Haus and Referrer agree as follows:
1.1. “Referral Fee” means the fees paid or payable to Referrer for the referral of a Qualified Prospect in accordance with this Agreement.
1.2. “Customer” means a Qualified Prospect that (i) has agreed to the Terms of Service available at https://www.haus.io/terms or a similar written agreement entered into between Haus and Customer, and (ii) has entered into an annual agreement for the purchase of products or services from Haus.
1.3. “Products” The products and services currently available from Haus as listed at Haus’s website at https://www.haus.io/, as changed, discontinued, added to or updated from time to time by Haus in its sole discretion.
1.4. “Promotional Materials” means the graphic or textual materials provided by Haus (if any) for use by the Referrer in connection with the promotion of the Products and the Haus.
1.5. “Qualified Prospect” means a potential customer that meets the requirements set forth in Section 4.2 and is accepted by Haus.
1.6. “Submission Date” means the date that Referrer has completed and submitted to Haus the applicable Referral.
1.7. “Subscription Fees” means the fees paid by a Customer for a subscription for access and use of any of the Products, excluding amounts paid for sales, value-added or use taxes, insurance, set-up, support and any other similar items.
1.8. “Terms” means Haus’s terms and conditions for the subscription and use of the Products.
2.1. The primary objectives of this relationship are for (a) Referrer to identify potential customers for the Products, (b) Referrer to provide the potential customers with information about Haus and its Products, (c) Referrer to identify Qualified Prospects to Haus, and (d) Haus to compensate Referrer in accordance with Section 5 for Qualified Prospects.
2.2. Haus hereby grants to Referrer a nonexclusive, nontransferable license (the “License”) to use the Promotional Materials as specified under the terms and conditions of this Agreement. The term of the License shall expire upon the termination of this Agreement. Referrer may not use any graphic, textual or other materials to promote the Products or Haus, unless Haus agrees to such other materials in writing prior to their use. Referrer may only use the Promotional Materials for the purpose of promoting the Services and Haus. Referrer will not alter, add to, subtract from, or otherwise modify the Promotional Materials as originally prepared by Haus without the prior written consent of Haus. Referrer will not remove, deface or alter any Haus trademarks or other designations affixed to the Promotional Materials by Haus.
2.3. Haus grants to Referrer a limited right to use, during the term of this Agreement, accurate representations of Haus’s name, logo and other trademarks used by Haus (the “Trademarks”) with respect to the Promotional Materials and Products for all proper purposes in connection with promoting the Products and Haus under this Agreement.
2.4. In all its actions and activities relating to this Agreement, Referrer will clearly indicate that it is acting as an independent contractor under this Agreement and not as an employee or agent of Haus, or as a distributor or reseller of Products. Referrer shall refer all requests to subscribe to Products directly to Haus.
2.5. The parties agree that Haus is solely responsible for establishing prices and terms for the Products with prospective customers.
2.6. Each party shall be responsible for all of its costs and expenses incurred in performance of its obligations under this Agreement.Â
2.7. Haus and Referrer agree that the relationship between the parties is non-exclusive and neither party shall be required to recommend the other party’s products or services to their customers.
2.8. Referrer shall comply with all applicable laws and regulations and shall obtain and maintain all registrations, licenses, permits, certificates or approvals with governmental agencies, commercial registries, chambers of commerce, or other offices required to conduct its business and to perform its obligations under this Agreement.
2.9. Referrer shall treat any Customer data, including any personal information, in accordance with Haus’s privacy policy (as amended from time to time) available at https://www.haus.io/privacy-policy. At all times during the term of this Agreement, Referrer shall maintain appropriate technical and organizational measures to protect any Customer data, including any personal information that it collects, accesses or processes in connection with this Agreement against unauthorized or unlawful use, disclosure, processing or alteration. Referrer’s collection, use, disclosure and processing of any such Customer data shall be in accordance with all applicable laws, rules and regulations.
2.10. Except in direct conversations with potential customers in connection with the promotion of the Products and Haus under this Agreement, Referrer shall not (a) use the Trademarks in advertising, publicity, or otherwise or (b) announce the existence or terms of this Agreement without the prior written consent of Haus, which consent shall not be unreasonably withheld.
2.11. At Haus’s request, Referrer shall introduce Haus sales or other representatives to the appropriate contacts at the Qualified Prospect.
3.1. Haus will make available, the Promotional Materials and other updated Product information via its website to help Referrer remain current with respect to the Product offerings.
3.2. Haus will support Referrer’s efforts in connection with this Agreement and the Products by providing access to the Promotional Materials and other documentation and product functions and benefits via its website.
3.3. Haus will offer Referrer technical training for the Products, as applicable, from time to time upon reasonable request from Referrer at the Haus’s then-current charges for such training. Haus will also provide the administrative support necessary to process, qualify and make payments for referrals in accordance with the terms of this Agreement.
4.1. Referrer shall refer any potential customers to Haus (a “Referral”) through an online form provided by Haus to Referrer, or such other format as Haus may require. Final determination as to whether a potential customer qualifies as a Qualified Prospect rests with Haus in its sole discretion.
4.2. To qualify as a Qualified Prospect, the potential customer must (a) represent an opportunity that has not been previously identified or contacted by Haus directly or through its other distribution and representation channels (including any other Referrers or agents), (b) become a subscriber of one of the Products within one hundred twenty (120) days of the Submission Date without receiving any monetary or other incentive from Referrer, (d) have paid the Subscription Fees covering for access and use of the Products and (d) otherwise meet any other criteria (e.g., credit worthiness, etc.) required by Haus for new customers. A Referral shall be deemed rejected by Haus if the potential customer has not subscribed to one of the Products within one hundred twenty (120) days of the Submission Date; provided that on a case-by-case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend such 120-day period for a particular Referral.
5.1. Haus shall pay Referrer a Referral Fee in accordance with the fee schedule made available to Referrer or as otherwise agreed in writing between Haus and Referrer.
Haus reserves the right in its sole discretion to periodically change the applicable Referral Fees for new and existing Customers covered by this Agreement, upon prior written notification thereof to Referrer. Any such new Referral Fee amounts shall be applicable to all Referral Fees to be paid commencing ninety (90) days after the date of such notification.Â
5.2. The Referral Fees shall apply only to Qualified Prospects that have been solicited solely by Referrer and accepted by Haus.
5.3. Unless otherwise approved by Haus, all payments made pursuant to this Agreement will be calculated and paid in United States Dollars. The Referral Fees shall be paid to Referrer within ninety (90) days of the end of the calendar month based on the aggregate Subscription Fees actually received by Haus during the previous month.
5.4. Haus shall have the right to charge back to Referrer’s account or reduce any future Referral Fees for any amounts previously paid or credited to it as a result of any adjustments or cancellations regarding any of the Subscription Fees or Products, such as for fraud or credit card chargebacks.
5.5. Haus shall not be responsible for any taxes owed by Referrer arising out of or related to any Referrals or this Agreement. Unless required by law, Haus shall not withhold any taxes from the Referral Fees paid to Referrer.
6.1. Each Party represents and warrants to the other that: (a) it is an entity duly organized and validly existing under the laws of its jurisdiction of organization; (b) it is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Agreement; (c) it has all necessary power and authority to negotiate, execute, deliver and perform its obligations under this Agreement; (d) this Agreement constitutes a valid and binding obligation, enforceable against such Party in accordance with its terms, except to the extent that enforceability may be limited by bankruptcy and other similar laws affecting the rights and remedies of creditors generally; (e) it is not a party to, subject to or bound by any agreement or any statute, law, rule, regulation, judgment, order, writ, injunction, or decree of any court, administrative or regulatory body, governmental agency, arbitrator, mediator or similar body, franchise or license, that would (i) conflict with or be breached or violated by the execution, delivery or performance by it of this Agreement or (ii) prevent the carrying out of the transactions contemplated by this Agreement; and (f) it will not engage in the distribution of any unsolicited bulk emails (spam) or any other harassing behavior in any way mentioning or referencing the other or the other’s website.
6.2. Haus retains all right, ownership, and interest in the Promotional Materials, the Products and its website, and in any copyright, trademark, or other intellectual property in the Promotional Materials, the Products and the website. Nothing in this Agreement shall be construed to grant Referrer any rights, ownership or interest in the Promotional Materials, the Products or the website, or in the underlying intellectual property, other than the rights to use the Promotional Materials granted under the License or the Trademarks as set forth in Section 2.3.
7.1. The parties acknowledge that during the term of this Agreement, each party may provide the other party confidential information. The term “Confidential Information” shall mean any and all information that is disclosed by either party to the other in a tangible or intangible form which is either identified or should be reasonably understood to be confidential or proprietary. Confidential Information includes, but is not limited to, trade secrets, ideas, processes, programs, source code, formulas, materials, software, substances, sources of supplies, technology, research, know-how, improvements, discoveries, developments, designs, inventions, techniques, marketing plans, strategies, forecasts, new products, unpublished financial statements, budgets, projections, prices, costs, and customer lists.
7.2. Both parties shall keep Confidential Information in strict confidence and shall not disclose it to any third party. Both parties shall only use Confidential Information in a manner consistent with the terms of this Agreement and only in furtherance of the mutually beneficial relationship between the parties. Referrer’s internal disclosure of Confidential Information shall only be to those employees or agents having a need to know such information in connection with this Agreement and only if such persons are bound by a nondisclosure agreement that is no less restrictive than set forth in this Section 7. A party shall promptly notify the other of any unauthorized disclosure or use of Confidential Information by any person.
7.3. Notwithstanding the provisions of Subsection 7.1. Confidential Information shall not include any information or material that is: (a) already in the possession of the receiving Party, its subsidiaries, employees or agents without prior restrictions; (b) independently developed by the receiving Party, its subsidiaries, employees or agents; (c) publicly disclosed by the disclosing Party or others who are not subject to any confidentiality restrictions with the disclosing Party; or (d) made available by the disclosing Party, its subsidiaries, employees or agents to others without restriction. Further, the receiving Party may disclose Confidential Information pursuant to a valid order issued by a court or government agency or as otherwise required by law, provided that (a) the receiving Party provides the disclosing Party with prior written notice of such obligation and the opportunity to oppose such disclosure or obtain a protective order; (b) the receiving Party only discloses such Confidential Information as is required to comply with such order or law and (c) no such disclosure shall otherwise exempt such Confidential Information from being treated as confidential under this Agreement. The obligations under this Agreement with respect to Confidential Information shall continue for a period of three (3) years from the date of each disclosure and shall survive the termination of this Agreement.
7.4. Referrer agrees (a) that it will not attempt to decompile or disassemble any of the Products or otherwise engage in reverse engineering of the Products and (b) to use all reasonable endeavors to ensure that its employees and agents observe this Section 7.4.
8.1. This Agreement shall take effect on the Effective Date and shall continue for a period of one (1) year following the Effective Date unless terminated earlier as provided in this Section 8. After the initial term, this Agreement shall renew for additional terms of one year each, unless either party notifies the other no less than thirty (30) days prior to the end of the then-current term that it does not wish to renew the Agreement.
8.2. This Agreement may be terminated by mutual written agreement of the parties, or upon thirty (30) days written notice by either party, for convenience.
8.3. This Agreement may be terminated at any time by the non-breaching Party upon any material breach of this Agreement which is not cured within thirty (30) days after written notice of such breach.
8.4. This Agreement shall terminate, without notice, upon (i) the institution by or against Referrer of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of Referrer’s debts, (ii) Referrer’s making an assignment for the benefit of creditors, (iii) the insolvency of Referrer or its ceasing to conduct business in the normal course, or (iv) Referrer’s dissolution.
8.5. Upon termination of this Agreement for any reason: (a) Referrer shall only be entitled to Referral Fees accrued prior to the effective date of termination. Thereafter, no additional Referral Fees shall be paid to Referrer even if a Qualified Prospect continues to be a Customer. No residual Referral Fees of any sort shall be due to Referrer or to any of Referrer’s successors and assigns whether or not accrued or approved by Haus, in the event of termination under Section 8.3 or 8.4; and (b) each party shall return to the other (or certify destruction of) all Confidential Information within five (5) business days of termination; provided that the receiving Party may retain one (1) copy of the disclosing Party’s Confidential Information for administrative purposes so long as it continues to be treated as confidential under the terms of Section 7.
8.6. Sections 7, 9 and 10 shall survive any termination of this Agreement.
9.1. Warranty. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED,TO THE OTHER OR ANY THIRD PARTY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE PRODUCTS, AND EACH PARTY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, HAUS PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE PRODUCTS WILL MEET ANY CUSTOMER’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES (EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE. The foregoing limitations shall apply even if the above-stated warranty fails of its essential purpose.
9.2. Indemnification. Referrer agrees to indemnify and hold Haus and its officers, directors, employees and agents harmless from and against, and assumes complete responsibility for all third party suits, actions, claims, losses, judgments, damages, costs and expenses arising in connection with Referrer’s performance under the Agreement including: (a) Referrer’s breach or default under this Agreement; (b) the solicitation of potential customers by Referrer; or (c) the negligence, misrepresentation, error or omission on the part of Referrer relating to or concerning Haus, the Products or this Agreement.
9.3. Limitations. EXCEPT FOR THE GROSS NEGLIGENCE OF WILLFUL MISCONDUCT OF A PARTY, ANY BREACH OF SECTION 7 OR THE MISAPPROPRIATION OF INTELLECTUAL PROPERTY, NEITHER PARTY WILL BE LIABLE FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF WARRANTY, BREACH OF CONTRACT, REPUDIATION OF CONTRACT, NEGLIGENCE OR OTHERWISE, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HAUS’S LIABILITY ARISING OUT OF THIS AGREEMENT OR OTHERWISE EXCEED THE MONEY PAID TO HAUS FOR THE PRODUCTS GIVING RISE TO THE LIABILITY UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT DURING THE ONE (1) YEAR PERIOD PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM. These limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.
Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under the Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. The arbitration shall take place in San Francisco, California, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce the Agreement shall be entitled to costs and attorneys’ fees.
11.1. The parties are independent contractors under this Agreement and nothing in this Agreement (a) shall be construed to create a partnership, joint venture or agency relationship between the parties hereto, (b) authorizes a party to act as an agent of the other or bind the other to any transaction, or (c) provides a party with express or implied authority to act on behalf of the other party. Any waiver or modification of any term in this agreement should not be construed as a waiver or modification of any other term.