IMPORTANT! THIS PROSPERWORKS REFERRAL AGREEMENT (“REFERRAL AGREEMENT”) GOVERNS YOUR PARTICIPATION IN THE PROSPERWORKS REFERRAL PARTNER PROGRAM. THIS AGREEMENT WILL BE LEGALLY BINDING WHEN YOU CLICK THE “AGREE” BUTTON. CAREFULLY READ THIS AGREEMENT BEFORE CLICKING “AGREE.”
YOU REPRESENT 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 YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS IN THE REFERRAL AGREEMENT, DO NOT CLICK THE “AGREE” BUTTON OR COMPLETE THE APPLICATION FOR PARTICIPATION IN THE PROSPERWORKS REFERRAL PARTNER PROGRAM.
PROSPERWORKS REFERRAL AGREEMENT
This Referral Agreement is made and entered into by and between ProsperWorks, Inc. with a principal place of 221 Main Street, #1350, San Francisco, CA 94105, USA ("ProsperWorks”) and individual or legal entity registering a ProsperWorks referral account (“Partner”) as of the earlier of (i) the date of ProsperWorks accepts Partner’s enrollment in the Program as established by an email notification to Partner and (ii) the date of ProsperWorks’ acceptance of your application (the “Effective Date”).
ProsperWorks appoints Partner as a non-exclusive referral partner for the ProsperWorks’ products and services specified on Schedule A. Partner agrees to use commercially reasonable efforts to refer prospective customers with which ProsperWorks or its partners do not have a pre-existing relationship (a “Lead”) to ProsperWorks in accordance with terms of this Referral Agreement. The financial and payment terms associated with this Referral Agreement are set forth on Schedule A. Each party acknowledges that this Referral Agreement does not create an exclusive agreement between the parties. Notwithstanding the foregoing, once Partner establishes a Lead, it will not refer a direct competitor of ProsperWorks to such Lead.
Subject to the terms and conditions of this Referral Agreement and during the term of this Referral Agreement, ProsperWorks hereby grants Partner, a non-exclusive, nontransferable, royalty-free, worldwide license to display the ProsperWorks trademarks specified by ProsperWorks solely as necessary to perform the marketing and referral obligations described herein. Any use of the other ProsperWorks’ trademarks shall be subject to ProsperWorks’ right to review and approve or reject in advance each proposed use, and shall conform with any trademark usage guidelines, policies, or requirements provided by ProsperWorks and will accrue to the benefit of ProsperWorks. Partner will not take any action that would conflict with or be contrary to the ProsperWorks’ rights and interest in its trademarks. ProsperWorks does not authorize Partner’s use of any of ProsperWorks’ trademarks or service marks to promote or use for search engine ranking or ad word purchase or as part of a trade name, business name or Internet domain name without ProsperWorks’ prior written consent. If Partner registers or otherwise obtains rights to marks (as trademarks, service marks, URLs, company names or otherwise) in violation of this Referral Agreement, Partner will, at its own expense, transfer and assign such rights to ProsperWorks, and execute all documents reasonably requested by ProsperWorks to facilitate such assignment or transfer. Nothing contained herein shall be deemed to grant either party any right, title or interest in or to the other’s trademarks other than the license granted herein. Partner acknowledges that ProsperWorks is the sole and exclusive owner of its trademarks.
In the event that Partner provides ProsperWorks with suggestions, enhancement requests, recommendations, proposals, documents, or other feedback (collectively, “Communications”), Partner grants to ProsperWorks a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform such Communications without compensation to Partner or attribution of any kind.
2.3 Reservation of Rights.
All licenses not expressly granted in this Referral Agreement are reserved by ProsperWorks and no other licenses, immunity or rights, express or implied are granted by ProsperWorks, by implication, estoppel, or otherwise.
From time to time ProsperWorks may disclose or make available to Partner, whether orally or in physical form, confidential or proprietary information concerning ProsperWorks, or its business, vendors, customers, products or services and those of its related corporate entities in connection with this Referral Agreement (collectively “Confidential Information”). Examples of Confidential Information include, but are not limited to, ProsperWorks’ customer lists, pricing policies, market analyses, market projections, consulting and sales methods and techniques, expansion plans, personnel information, financial information, programs, program decks, routines, subroutines, operating systems, object and source codes, this Referral Agreement and its terms, and any other information which is information either identified as being confidential information or which is information that a reasonable business person would understand to be confidential information. Partner agrees that during the term of this Referral Agreement and thereafter: (i) it will use Confidential Information solely for the purpose(s) for which such material or information was provided and for no other purpose whatsoever; and (ii) it will take all reasonable precautions to ensure that it does not disclose Confidential Information to any third party (other than it’s employees or professional advisors on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein) without first obtaining ProsperWorks’ written consent. Upon request by ProsperWorks, Partner will return all copies of any Confidential Information. Partner shall be responsible for any breach of this Section by its employees, representatives, and agents. Upon termination of this Referral Agreement for any reason, or upon written request from ProsperWorks, Partner will immediately return any and all tangible materials containing Confidential Information. Following termination of this Referral Agreement, Partner shall remain obligated not to use, reproduce, disclose or provide such items or information to third parties without the prior written permission of ProsperWorks. For the avoidance of doubt, any information generated or obtained by ProsperWorks or its products and services from a Lead will be ProsperWorks’ Confidential Information, and Partner may not may not store, link, or associate such data, in any form.
Partner will not issue any press release or other public communication relating to ProsperWorks or this Referral Agreement without the express prior written consent of ProsperWorks.
5. Term and Termination.
The initial term of this Referral Agreement will be one (1) year from the Effective Date. This Referral Agreement shall automatically renew for additional one (1) year terms, unless either party provides the other with written notice of its intent to terminate the Referral Agreement.
Either party may terminate this Referral Agreement upon thirty (30) days written notice to the other party in the event of a breach of any provision of this Referral Agreement by the other party, provided that, the breaching party fails to cure the breach within 30 days following notice of the breach.
Either party may terminate this Referral Agreement if the other party becomes insolvent, makes any 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, under the bankruptcy code, or any similar statute.
Either party may terminate this Referral Agreement upon giving ten (10) days prior written notice to the other party.
5.5 Effect of Termination.
In the event that ProsperWorks terminates this Referral Agreement pursuant to Section 5.4, ProsperWorks will continue to make payments to Partner in accordance with Schedule A hereto. The following provisions will survive expiration or termination of this Referral Agreement: Sections 2.2, 2.3, 3, 4, 5.5, and 7 - 9.
6. Representations and Warranties.
7. Disclaimer of Warranties.
EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED IN THIS REFERRAL AGREEMENT, THE PARTIES SPECIFICALLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ALL INFORMATION PROVIDED BY PROSPERWORKS TO PARTNER IS PROVIDED “AS IS.”
8. Limitations of Liability.
EXCEPT FOR BREACHES OF SECTIONS 3 (CONFIDENTIALITY), BREACHES OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, OR PARTNER’S BREACHES OF SECTIONS 6, 9.5 AND 9.6, NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, DOWNTIME, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT FOR BREACHES OF SECTIONS 3 (CONFIDENTIALITY), BREACHES OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, AMOUNTS PAYABLE UNDER THIS REFERRAL AGREEMENT, OR PARTNER’S BREACHES OF SECTIONS 6, 9.5 AND 9.6, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER UNDER THIS REFERRAL AGREEMENT EXCEED THE REFERRAL PAYMENTS PAID OR DUE TO PARTNER FOR THE PRECEDING SIX MONTHS. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS AN ESSENTIAL ELEMENT OF THIS REFERRAL AGREEMENT AND THAT IN ITS ABSENCE THE ECONOMIC TERMS OF THIS REFERRAL AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS REFERRAL AGREEMENT.
9.1. Independent Contractor.
This Referral Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties. Partner and ProsperWorks are independent contractors with respect to one another under the terms of this Referral Agreement. Neither Party shall have the authority to legally bind the other party to any contract, proposal, or commitment or to incur any debt or create any liability on behalf of the other. Partner will not in any way express or imply that any opinions contained in Partner’s promotional activities are endorsed by ProsperWorks, unless such promotional activities have in advance been endorsed in writing by ProsperWorks.
9.2. Force Majeure.
Neither party shall be liable for any loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, criminal acts of third parties, and any payment date or delivery of service date shall be extended to the extent of any delay resulting from any force majeure event.
The parties agree that all notices that may or must be given under the provisions of this Referral Agreement shall be delivered by email, facsimile, or hand-delivery. Notices to ProsperWorks shall be directed to the then-current relationship manager. Notices to Partner shall be directed to the contact information provided by Partner to ProsperWorks. All notices shall be effective the next business day after sending.
This Referral Agreement shall inure to the benefit of and bind the parties hereto, their successors and assigns, but neither party may assign this Referral Agreement without written consent of the other, except such consent is not required for ProsperWorks to assign this Referral Agreement in connection with a change of control, merger, acquisition, or sale of substantially all of ProsperWorks’ assets.
Partner acknowledges that any sums paid to it under this Referral Agreement are for its own account and that, except as appropriate to carry out its duties set forth herein in a legal manner, Partner did not, has no obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or anything of value to any other person in connection with the performance of its referral activities hereunder. In particular, without limitation, Partner agrees not to take any actions that would cause Partner or ProsperWorks to violate the United States Foreign Corrupt Practices Act or any other anti-bribery law.
The headings of the Sections of this Referral Agreement are intended for convenience only, and will not affect the intent, scope, or meaning of any provision of this Referral Agreement.
9.8. Governing Law.
This Referral Agreement shall be governed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof). The UN Convention on the International Sale of Goods does not apply to this Referral Agreement. The sole jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in San Francisco, California and each party consents to the jurisdiction of such courts with respect to any such action.
This Referral Agreement (and any Schedules or Exhibits hereto) represent the entire agreement of the Parties with respect to the subject matter hereof and supersedes all prior discussions and agreements between the Parties and is intended to be the final expression of their Referral Agreement. It shall not be modified or amended except in writing signed by both Parties, provided that ProsperWorks will be entitled to modify this Referral Agreement upon ten (10) days prior written notice to Partner. In the event of an express conflict between the terms of this Referral Agreement and the terms of any Schedule or Exhibit, this Referral Agreement controls. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be limited or eliminated to the minimum extent necessary so that this Referral Agreement shall otherwise remain in full force and effect. This Referral Agreement shall not modify or amend any other agreement between ProsperWorks and Partner with respect to the subject matter of such other agreement.
“Service” means the Customer Relationship Management (CRM) service made available by ProsperWorks.
“Territory” means worldwide, subject to applicable laws including any U.S. export laws.
“User Fraud” means any transaction that is fraudulent, invalid, unauthorized, illegal, lacking sufficient documentation, generated by a bot, automated program, hidden frame, or redirect, or not otherwise bona-fide as reasonably determined by ProsperWorks.
1. Qualifying Leads:
1.1 Partner will only promote and market the Service to Leads in the Territory.
1.2. Partner will be provided with a unique URL (“Link”) in order to direct Leads to a website designated by ProsperWorks for registering for a subscription for the Service. ProsperWorks may update Partner’s Link from time to time, and Partner agrees to use only the most current Link. ProsperWorks will have no liability for Lead referred by Partner through use of an outdated Link.
1.3 ProsperWorks may decline a Lead for any reason. In the event ProsperWorks declines a Lead, Partner will not promote and market the Service to such entity.
1.4 ProsperWorks will exclusively control and manage the negotiation and execution of any definitive agreements with the Lead.
1.5 Partner shall be solely responsible for and shall bear all costs associated with Partner’s development of any Leads.
1.6 Partner will provide ProsperWorks with all available non-confidential information related to a Lead in order to assist ProsperWorks successfully soliciting the Lead to purchase a subscription to the Service. ProsperWorks may, but is under no obligation to, provide sales and marketing materials and informal training to Partner.
2. Referral Payments.
2.1. Provided that Partner is in compliance with the Referral Agreement and unless otherwise agreed by ProsperWorks in writing (including by email from an authorized representative of Prosperworks), ProsperWorks will pay Partner a one-time commission equivalent to one month’s subscription fees actually received by ProsperWorks from a Lead registering for a subscription for the Service via the Link after a Lead has paid ProsperWorks for three (3) months of access to the Service, minus any taxes, subsequently credited charges, write-offs, refunds or charge backs (“Referral Payment”). ProsperWorks will not make any Referral Payments (i) for upsells, consulting, training, professional, or third party services purchased by a Lead from ProsperWorks, or (ii) related to Use for Fraud.
2.2. Partner will use commercially reasonable efforts to provide at least ten (10) leads per calendar month to ProsperWorks. ProsperWorks or its representatives will track Leads and determine Referral Payment amounts earned by Partner hereunder. ProsperWorks’ records will be determinative for the purposes of the foregoing. In the event that ProsperWorks determines that Partner is in breach of this Section 2.2., or Partner fails to provide ten (10) Leads in a calendar month, ProsperWorks may, without penalty and without any additional payment obligation of any kind, terminate this Referral Agreement and Partner’s participation in the ProsperWorks referral partner program.
2.3 Within thirty (30) days after the end of each calendar quarter which Partner has submitted five (5) or more Leads, ProsperWorks will issue a reports to Partner by e-mail or other method communicated by ProsperWorks to Partner, which will show at a minimum the following information for each Lead referred by Partner: the date of submission or acceptance of the Lead, the actual revenue generated by such Lead which is eligible for a Referral Payment, and the Referral Payment earned by the Partner as a result. If ProsperWorks provides such report by email, ProsperWorks will send the report to the address identified on Partner’s application or subsequently provided to an authorized representative of ProsperWorks in writing. ProsperWorks will have no liability resulting from Partner’s failure to maintain updated contact information.
2.4 Promptly following receipt of the report described in Section 2.3, Partner will submit an invoice to ProsperWorks in accordance with instructions provided to Partner from time to time. ProsperWorks will make Referral Payments no later than 45 days following receipt of an accurate and undisputed invoice, after Partner has earned at least US$100 in Referral Payments. Referral Payments will be made in U.S. dollars and sent by ProsperWorks to Partner’s designated account in the Territory via ACH. ProsperWorks is not required to pay invoices received more than six months following ProsperWorks’ submission of a report to Partner in accordance with Section 2.3 of this Schedule A. ProsperWorks may offset any amounts due to Partner against amounts Partner owes to ProsperWorks under this Agreement or otherwise.
2.5 At ProsperWorks’ request, Partner will promptly complete and return to ProsperWorks applicable tax documentation and forms. Payments may be withheld if ProsperWorks does not timely receive such documentation and forms.