These Referral Partner program terms and conditions (the “Terms”) between Hodi, Inc. (“Company”), and you ("you” or “your” or “Referral Partner”), (each party a “Party” and collectively, the “Parties"), govern the terms and conditions under which Company will pay to you certain referral fees for your marketing and promoting Company’s products as related to the Company’s Referral Partner program to which you have agreed to participate by clicking “I Agree” in the corresponding Referral Partner program agreement click box (such assent and these Terms are collectively referenced as this or the “Agreement”).
1. Definitions
For purposes of these Terms, the capitalized terms listed in this Section 1 will have the meanings indicated. Other capitalized terms used in these Terms will have the meanings indicated in the Sections in which they appear or as otherwise required by the context in which they are used.
1.1. “Affiliate” shall mean any Person that is partially or wholly owned by, or otherwise under common control of, the Company or any parent or subsidiary Person of the Company.
1.2. “Cause” shall mean: (i) any act which is a felony, or an offense involving moral turpitude under federal, state or local laws, or which might tend to bring Referral Partner to public disrepute, contempt, scandal or ridicule, or which might tend to reflect unfavorably upon the Company, its reputation, products, services or customers; (ii) breach of obligations under these Terms; (iii) conduct in connection with performance of this Agreement that is fraudulent, unlawful or grossly negligent; or (iv) willful misconduct damaging to the Company, its reputation, products, services, or customers.
1.3. “Effective Date” shall mean the date on which Referral Partner has agreed to this Agreement, and to be bound by these Terms.
1.4. “Introduction Window” shall mean the period beginning on the date a potential customer is first introduced by Referral Partner to the Company in writing (email is acceptable) and ending as of 5 P.M. New York time on the date ninety (90) days thereafter.
1.5. “New Customer” shall mean any customer of the Company that meets all of the following: (i) is originated by Referral Partner and initially introduced by Referral Partner to the Company pursuant to the Company’s Partnerstack website referral submission process, or the process otherwise specified by the Company for making and tracking such introduction (initially, such non-Partnerstack based introduction must be made via email to Alden Morse at [email protected] or [email protected]), on or after the Effective Date; (ii) was not previously introduced by any other Person to, or contacted by, the Company in the six (6) months prior to the introduction by Referral Partner specified in (i); (iii) first becomes a customer of the Company on or after the Effective Date and during the applicable Introduction Window; (iv) was not referred to the Company by an Affiliate; and (v) was not a customer of any of the Company or any predecessor or successor of the Company at any time during the twenty-four (24) month period ending on the Origination Date. Notwithstanding anything to the contrary in the foregoing, the determination of whom constitutes a “New Customer” shall be made by the Company in its sole discretion and, in its sole discretion, the Company may designate a division or business line of an existing customer that otherwise satisfies the requirements of (i) - (v) above as a "New Customer" for purposes of these Terms; provided that, in such a case, for purposes of Section 7 hereof, the definition of New Customer shall also include the existing customer.
1.6. “New Customer Billings” shall mean with respect to any New Customer, the actual amount billed to such New Customer for New Customer’s purchase of a Company software product subscription, but only if, as and to the extent that such amounts are ultimately collected by the Company. The amount of New Customer Billings shall be determined in the sole discretion of the Company.
1.7. “Origination Date” with respect to any New Customer, shall mean the date on which the Company first performs billable professional services for such New Customer.
1.8. “Person” shall mean any individual, corporation, partnership, limited liability company, joint venture, trust, trustee, unincorporated organization or other entity.
2. Referral Fees
Except as described in Section 3 below, Referral Partner shall be eligible to receive a referral fee from the Company of New Customer Billings actually collected by the Company for such New Customer, in the amount as set forth in the Referral Fee Schedule attached to these Terms (the “Referral Fee”). Referral Partner acknowledges and agrees that the Referral Fee constitutes full and adequate consideration for Referral Partner’s introducing New Customers to the Company. At the time payments are made to Referral Partner under these Terms, the Company will furnish to Referral Partner a statement reflecting the total New Customer Billings for each applicable New Customer and Referral Partner’s Referral Fee amount of the New Customer Billings. The Company, in its sole discretion, shall have the option to enter into, or decline to enter into, an agreement with any Person. In the event the Company declines, for any reason, to enter into an agreement with any potential New Customer, the Company shall have no obligation to Referral Partner under these Terms or otherwise with respect to such potential New Customer, and Referral Partner shall not have any entitlement to a Referral Fee.
3. Term; Termination
3.1. Term. The Agreement shall continue until a Party provides written notice of termination (email is acceptable) to the other Party stating a Party’s intention to terminate the Agreement (the “Termination Notice”). Such termination may occur for any reason, including Cause (as defined herein) or for no reason. The termination shall be effective on the date a Termination Notice is received (or, if delivered by email, the date sent). The effective date of any termination hereunder is the “Termination Date”. From and after the Termination Date, Referral Partner shall only be entitled to receive a Referral Fee, as set forth in Section 2, with respect to New Customer Billings whose Origination Date occurred before the Termination Date, except as otherwise provided, including Section 3.2.
3.2. Effect of Termination For Cause By Company
3.2.1. Termination for Cause. In the event that this Agreement regarding the Referral Partner program between the Parties is terminated by the Company for Cause, Referral Partner shall immediately forfeit any right Referral Partner may have to any then earned and unpaid, or any future, Referral Fee for which Referral Partner may have been entitled.
3.2.2. Breach of Confidentiality. If, at any time after the Effective Date, including after termination of these Terms, Referral Partner is in breach of Section 7 hereof, which terms shall survive any termination of the Agreement and these Terms, Referral Partner shall immediately forfeit any right Referral Partner may have to any then earned and unpaid, or any future, Referral Fee for which Referral Partner may have been entitled.
3.2.3. Post-Termination Cause Event. In the event that the Agreement is terminated, for any reason or no reason, and following such termination Referral Partner engages in any conduct (including by omission or failure to act) which would have permitted the Company to terminate the Agreement pursuant to Section 3.2, Referral Partner shall immediately forfeit any right Referral Partner may have to any then earned and unpaid, or any future, Referral Fee for which Referral Partner may have been entitled.
4. Independent Contractor; Characterization of Payments
Referral Partner’s status will be that of independent contractor. Referral Partner is not being employed by the Company and will not participate in any benefit plans made available by the Company to its employees or partners. Referral Partner will not be reimbursed for any expenses incurred by Referral Partner unless those expenses have been approved by the Company in writing (email is acceptable) before they were incurred. Referral Partner will have no authority to act for or bind the Company. Any amounts paid to Referral Partner by Company shall be reported on Form 1099 as fees paid to an independent contractor. Referral Partner shall be solely responsible for any taxes, including self-employment taxes, required to be paid or remitted in respect of referral fees received from the Company, and shall indemnify, defend and hold the Company harmless against any failure to pay or remit such amounts.
5. No Preexisting Restriction
Referral Partner warrants and represents that Referral Partner is not subject to any employment contract or other restriction with a former employer or any other Person that would prohibit Referral Partner from making referrals to the Company or that would otherwise be violated by the arrangements set forth in these Terms. If at any time Referral Partner becomes subject to an employment contract or other restriction with an employer or any other Person that would prohibit Referral Partner from making referrals to the Company or that would otherwise be violated by the arrangements set forth in these Terms, Referral Partner agrees to immediately notify the Company and cease making referrals. The Company will not be obligated to pay a Referral Fee for any New Customer referred after the date Referral Partner become subject to such a restriction.
6. Referral Conduct.
Referral Partner acknowledges and agrees that these Terms do not create a right for Referral Partner to do any of the following, and in conducting any activity under these Terms, and as a condition precedent to the receipt of any Referral Fee hereunder, Referral Partner shall not: (i) use or reference any Company or Affiliate branding, trademarks, logos, or other identifying information in Referral Partner’s emails, writings, Linkedin, Facebook, Instagram or any other social media account or communication without the Company’s prior written approval (email is acceptable); (ii) indicate, represent or otherwise allude, in any form, that Referral Partner is an employee, consultant or agent, or are acting as a representative, of the Company or any Affiliate; (iii) use the Company’s or any Affiliate’s electronic equipment or property, including computers, cell phones, or other electronic mobile devices; (iv) without the express consent of the Company or the applicable Affiliate, conduct business, under these Terms or otherwise, from any Company or Affiliate office or business location.
7. Proprietary Information.
7.1. Company Proprietary Information. Referral Partner recognizes, acknowledges and agrees that the trade secrets, proprietary information and processes, and confidential information of the Company (including the Affiliates) (collectively “Company Proprietary Information”) are and shall be kept the valuable, special, private, unique and confidential assets of the Company, access to and knowledge of which may be necessary to Referral Partner’s performance hereunder. Referral Partner agrees to treat as private and confidential all Company Proprietary Information, and agrees not to, at any time, in whole or in part, disclose such Company Proprietary Information to any Person for any reason or purpose whatsoever, nor shall Referral Partner make use of any such Company Proprietary Information for Referral Partner’s own purposes or for the benefit of any Person (except the Company) under any circumstances during or after the term of this Agreement. In addition, Referral Partner agrees to hold as the Company’s property, all memoranda, books, papers, letters, and all other data in whatever medium, and all copies thereof and therefrom, in any way relating to the Company’s business and affairs, whether made by Referral Partner or otherwise coming into Referral Partner’s possession or control, and on termination of this Agreement for any reason whatsoever, or on demand of the Company at any time, to immediately deliver the same to the Company. For the avoidance of doubt, Company Proprietary Information shall include, in addition to the aforementioned, the Company’s current and former customers, pipeline of prospective customers and customer leads and the structure and administration of Company’s business.
7.2. Customer Proprietary Information. Referral Partner recognizes, acknowledges and agrees that the trade secrets, proprietary information and processes, and confidential information of each customer of the Company (collectively “Customer Proprietary Information” and, collectively with Company Proprietary Information, “Proprietary Information”) is and shall be kept the valuable, special, private, unique and confidential asset of such customer (the “Disclosing Customer”), access to and knowledge of which may be necessary to Referral Partner’s performance hereunder. Referral Partner agrees to treat as private and confidential all Customer Proprietary Information, and agree not to, during or after the term of this Agreement, in whole or in part, disclose such Customer Proprietary Information to any Person for any reason or purpose whatsoever, nor shall Referral Partner makes use of any such Customer Proprietary Information for Referral Partner’s own purposes or for the benefit of any Person (except the Disclosing Customer) under any circumstances during or after the term of this Agreement. In addition, Referral Partner agrees to hold as the Disclosing Customer’s property, all memoranda, books, papers, letters, and all other data of the Disclosing Customer in whatever medium, and all copies thereof and therefrom, in any way relating to the business and affairs of the Disclosing Customer, whether made by Referral Partner or otherwise coming into Referral Partner’s possession or control, and on termination of this Agreement for any reason whatsoever, or on demand of the Disclosing Customer at any time, to immediately deliver the same to the Disclosing Customer.
7.3. Exclusion. “Proprietary Information” does not include information shown by Referral Partner to be or to have been published or otherwise generally known in the public, except by Referral Partner’s disclosure in violation of these Terms or any other confidentiality terms under which Referral Partner may be obligated.
7.4. Legally Required Disclosures. In the event that Referral Partner is required by law, regulation or other legal process to disclose any of the Proprietary Information, prior to disclosing any such Proprietary Information, Referral Partner shall provide the Company with written notice of any such request or requirement, and shall cooperate with the Company or Disclosing Customer, as applicable, in any of the Company’s and/or Disclosing Customer’s efforts to seek a protective order or other appropriate remedy and/or waive compliance with the terms of this provision. In the absence of such protective order or other remedy or failure by Company’s and/or Disclosing Customer to timely waive compliance with the terms hereof, Referral Partner may disclose Proprietary Information, but only that portion of the Proprietary Information which Referral Partner’s legal counsel determines in writing is legally required, and Referral Partner shall use reasonable efforts to obtain assurances that the disclosed Proprietary Information shall be accorded confidential treatment.
7.5. Enforcement. Referral Partner acknowledges that Referral Partner’s undertakings and agreements in this Section 7 are of the utmost importance to the Company and its Affiliates, and that any breach or threatened breach by Referral Partner will result in serious economic harm to the Company and its Affiliates, which will not have an adequate remedy at law. Therefore, if Referral Partner breaches or threatens to breach any term of this Section 7, the Company and/or Disclosing Customer shall be entitled, as a matter of right, to: (i) injunctive relief in any court of competent jurisdiction, restraining Referral Partner from the breach or threatened breach; and (ii) recovery of attorney's fees necessary to enforce this provision and any other remedies which may be available to the Company under applicable law. These remedies are intended to be cumulative, not exclusive.
8. Entire Agreement.
This Agreement contains the entire understanding between the Company and Referral Partner concerning the matters subject hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written regarding its subject matter. If any provision of these Terms is determined by a court of competent jurisdiction to be invalid or unenforceable, then the remaining provisions of these Terms will nevertheless be given full force and effect.
9. Modifications.
Upon notice to you, Company may update, amend, modify or supplement the Terms from time to time on a going forward basis. You can review the most current version of this Agreement at fairing.co/partner-terms. If the changed Agreement materially modifies your rights or obligations, Company may require you to indicate that you accept the changed Terms, in which case the changes are effective only after your acceptance.
10. Assignment.
Referral Party may not assign this Agreement or transfer any of Referral Partner’s rights or obligations hereunder, including by operation of law, without the prior written consent of Company. Company may assign this Agreement or any of its rights and obligations hereunder without Referral Partner’s consent. Any attempted assignment in violation of this Section 9 will be void.
11. Governing Law.
This Agreement will be governed by and construed in accordance with the laws of the State of New York. Any claim or suit arising out of or related to the Agreement (including these Terms) may only be brought in the State or Federal courts located in New York, NY, and Referral Partner waives any objection to inappropriate forum or lack of jurisdiction. Referral Partner agrees to waive the right to trial by jury with respect to any proceeding arising out of this Agreement.
12. Paragraph Headings.
The paragraph headings contained in these Terms are for convenience of reference only and shall not be used in construing or interpreting these Terms or any provision herein.
SCHEDULE 1
REFERRAL FEE SCHEDULE
Subject to these Terms, Referral Partner shall be entitled to a Referral Fee from the Company in an amount equal to twenty percent (20%) of New Customer Billings for such New Customer which are actually collected by the Company, for a period of time of up to twenty-four (24) months from the Origin Date of a New Customer. For purposes of clarity, in the event that a New Customer purchases a Company product subscription with a term of twenty-four (24) months or less, then (in accordance with the Terms), then Referral Partner shall be eligible to receive the Referral Fee for the entire product subscription term; however if a New Customer purchases a product subscription with a term of more than twenty-four (24) months then (in accordance with the terms herein) Referral Partner shall be eligible to receive the Referral Fee for only the first twenty-four (24) months of such product subscription term, regardless of the length of the subscription more than twenty-four (24) months.
Such Referral Fee, if any, shall be payable to Referral Partner within forty-five (45) days after the end of the month in which the payment for such New Customer Billings to which it relates was actually received by the Company.
Questions about this policy should be sent to [email protected] or our mailing address at:
Hodi Inc. dba Fairing
228 Park Avenue South
PMB 38031
New York NY, US, 10003