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SUDZY REFERRAL PARTNER AGREEMENT
This Referral Agreement (this “Agreement”) is entered into by and between Sudzy Inc., a Delaware Corporation (“Sudzy”) and the counterparty executing this Agreement set forth in the signature blocks below (“Referral Partner”) and is made effective as of the last date it has been executed by authorized representatives of both Sudzy and Referral Partner. This Agreement sets forth the terms and conditions of your participation in Sudzy’s Referral Partner program for the purpose of selling Sudzy’s hardware products and web-based services (the “Products” and “Services”).
Authorization
(a) Referral Partner Authority. Subject to the terms and conditions of this Agreement, Referral Partner may promote and market the Products and Services to prospective customers of Sudzy located in the United States and its territories in order to cause the prospective customer to enter into an agreement with Sudzy to receive the Services and Products in accordance with Sudzy’s standard terms and conditions (the “User License Agreement”) as such may be modified from time to time. The Services and Products that Referral Partner has the right to promote and market under this Agreement are limited to the Services that Sudzy determines in its absolute discretion to provide for sale.
(b) Definition. “Referral Partner Customer” means new Sudzy customers (i) for which the information has been submitted in full by Referral Partner and (ii) that commence using the Service for the first time that the Referral Partner causes to enter into the User License Agreement, and the receipt by Sudzy of a Referral Partner Customer payment, as a result of the solicitation of Referral Partner under the authority of this Agreement and excludes existing Sudzy customers and existing Sudzy leads that have previously contacted Sudzy directly or through another Referral Partner. Referral Partner Customer’s User License Agreements are referred to herein as the “Referral Partner Licenses”.
(c) Onboarding Referral Partner Customers; Sudzy’s Obligations. Referral Partner shall use the method set forth in Exhibit A attached hereto to transmit the information regarding prospective referral customers to Sudzy. Sudzy’s obligations under this Agreement are subject to Referral Partner’s compliance with the terms of this Agreement and the Exhibits attached hereto.
Restrictions and Limitations on Authority
(a) Restrictions on Trademark Usage. Referral Partner shall not itself and neither permit nor induce any third party to: (i) combine any Services, or any additional Sudzy services that Referral Partner and Sudzy agree that Referral Partner shall be permitted to promote and market pursuant to any amendment to this Agreement (the “Additional Services”) with the services of any third party, (ii) use the Sudzy Marks to offer any service or product that is not provided by Sudzy or provided under the authority of Sudzy, (iii) sell or offer for sale the Services with hardware that is not a Product, (iv) remove the Sudzy Marks from any Product, Service or Additional Service or (v) attach or associate any other trademark or brand name to any Product, Service or Additional Service.
(b) Restrictions on Technology. With regard to Sudzy’s point of sale application software and/or back-end server based software services (the “Software”), Referral Partner agrees that it has no right to nor any right to authorize any party to (i) make copies of or further distribute the Software, including copying onto any medium, (ii) distribute, rent, sublicense, lease, resell or assign the Software, (iii) alter, modify or adapt the Software or the Sudzy website, including but not limited to, translating, decompiling, disassembling, reverse engineering, or creating derivative works, (iv) export the Software without the appropriate foreign government licenses and without Sudzy’s prior written approval, (v) resell, rent or otherwise provide access to the Services or Additional Services to a third party on a service bureau basis or (f) take any action in an attempt to obtain any Referral Partner Customer’s or other Sudzy user’s data, cause malfunction, crash, tamper with or otherwise impair the Sudzy website and/or its Services, Additional Services or Software. Any rights not expressly granted hereunder are reserved by Sudzy.
(c) Restrictions on Pricing. Referral Partner acknowledges that prices and fees to Referral Partner Customers for the Products and Services are subject to change from time to time, provided that Sudzy will provide reasonable notice of any changes in the fee schedule. FOR THE AVOIDANCE OF DOUBT, REFERRAL PARTNER ACKNOWLEDGES AND AGREES THAT Sudzy, IN ITS SOLE DISCRETION, WILL SET THE PRICING OFFERED TO REFERRAL PARTNER CUSTOMERS FOR PRODUCTS AND SERVICES.
License to Use Sudzy Trademarks and Collateral Materials.
(a) Trademark. Subject to the terms hereunder, Sudzy hereby grants Referral Partner a non-transferable, non-sub-licensable, non-exclusive, revocable, limited license for the Term of this Agreement to reproduce and display the Sudzy trademarks and product names owned by Sudzy.
(b) Collateral Materials. Subject to the terms hereunder, Sudzy grants Referral Partner a non-exclusive, non-transferable, non-sublicensable, revocable, limited license for the Term of this Agreement to reproduce and display the Sudzy collateral materials (including text, artwork, images, videos and audio) on Referral Partner’s web site solely in association with the promotion of the Services, Products and Additional Services as and for no other purpose (the “Collateral Materials”). No rights are granted to create derivative works or use the Collateral Materials other than in connection with promoting the Services, Products and Additional Services.
Payment
(a) Referral Partner Fee. In consideration for operating as a Referral Partner of Products and Services in compliance with this Agreement, Sudzy shall pay the referral partner fees in the amounts set forth on Exhibit B attached hereto (each such payment, a “Referral Partner Fee”). The amount of the Referral Partner Fee and any other consideration paid to Referral Partner pursuant to this Agreement may be changed at any time by Sudzy at Sudzy’s sole discretion. Each Referral Partner Fee shall be paid to Referral Partner within 30 days of both a Referral Partner Customer entering into a Referral Partner License and the receipt by Sudzy of a Referral Partner Customer payment.
(b) Payment Process. Payments to the Referral Partner shall be made by ACH funds transfer through Sudzy’s ACH payment service provider. As a condition to payment, Referral Partner shall submit to Sudzy an accurate statement of its ACH payment destination parameters. Sudzy shall not be obligated to use any other payment methodology. Sudzy shall have no obligation to comply with any unreasonably complex data formatting requirement associated with an ACH payment parameter requirement submitted by Referral Partner.
Term and Termination
(a) Term. This Agreement is in effect until the earlier of (i) one (1) year from the Effective Date of this Agreement and will automatically renew for one (1) year increments unless either party provides notice of its intention not to renew at least 30 days prior to expiration of the then-current term and (ii) termination of the Agreement in accordance with its terms.
(b) Termination. Either party may terminate this Agreement upon ten (10) days advance written notice delivered to the other party.
(c) EACH PARTY ACKNOWLEDGES AND CONSENTS THAT FOR SECURITY REASONS, UPON TERMINATION OF THIS AGREEMENT, EACH OF Sudzy AND REFERRAL PARTNER MAY ALERT THE REFERRAL PARTNER CUSTOMERS TO THE FACT THAT REFERRAL PARTNER IS NOT OPERATING AS AN AUTHORIZED REFERRAL PARTNER OF Sudzy ANY LONGER.
(d) Right to Terminate Referral Partner License. Sudzy expressly reserves the right to deny, cancel or terminate any Referral Partner License that it deems necessary, in its discretion, without any liability to Referral Partner to protect the integrity and stability of Sudzy, to comply with any applicable laws, government rules, credit card association rules or requirements, at the request of law enforcement personnel, in compliance with any dispute resolution process, or to avoid any liability, civil or criminal, on the part of Sudzy, as well as its affiliates, subsidiaries, partners, officers, directors and employees.
Confidentiality, Non Exclusivity and Non Solicitation
(a) Confidentiality. Referral Partner agrees that for the duration of this Agreement and thereafter, Referral Partner shall not use, permit use nor disclose any Sudzy Confidential Information except as expressly permitted herein as necessary and in connection with its activities as an Authorized Referral Partner. “Confidential Information” means non-public information that Sudzy designates as being confidential or that Referral Partner has reason to know is considered by Sudzy to be confidential. The identity of any customer referred to Sudzy and any Accounting Statements transmitted to the Referral Partner are the Confidential Information of Sudzy. Confidential Information includes, but is not limited to, information in tangible or intangible form relating to and/or including released or unreleased products or services, the marketing or promotion of any of the Products, Services or Additional Services, any software, whether source code or executable, program interface protocols, documentation, Sudzy‘s business policies or practices, and information received from others that Sudzy is obligated to treat as confidential, customer identities, customer credit card numbers and Referral Partner Customer passwords, login information and transaction history. Confidential Information does not include any information, however designated, that Referral Partner can document: is or subsequently became publicly available without Referral Partner’s breach of any obligation under this Agreement; became known to Referral Partner prior to disclosure under this Agreement; was independently developed by Referral Partner without reliance on any Confidential Information of Sudzy or was disclosed to Referral Partner by a third party not subject to a duty of confidentiality to Sudzy.
(b) Non-exclusivity. Nothing in this Agreement shall prevent Sudzy from entering into agreements or relationships with third parties similar to this Agreement or any amendment to this Agreement or the relationship established by this Agreement or any Amendment to this Agreement. Referral Partner acknowledges that these third parties may be similarly situated as Referral Partner and offer products or services competitive to Referral Partner and that such activities shall not be a breach of any obligation under this Agreement. Referral Partner acknowledges that Sudzy and such third parties may be soliciting the same potential customers and therefore Referral Partner agrees that this Agreement shall not restrict either Sudzy or its Referral Partners from conducting such solicitations or providing services to such customers. Sudzy shall be entitled to use information as it relates to the services it provides to Referral Partner Customers in accordance with its agreement with such Referral Partner Customers and applicable law.
(c) Non-solicitation. (i) Referral Partner agrees that during the Term of this Agreement, and for a period of three (3) years thereafter it will not, and it shall not knowingly cause or permit any of its employees, agents, principals, affiliates, subsidiaries or any other person or entity (i) to direct or refer any Referral Partner Customer to any third party entity for any products or services that directly competes with the Sudzy Products, Services and and Additional Services, provided that the foregoing does not prevent Referral Partner from responding to a request initiated by a Referral Partner Customer to use a provider of services that compete with the Sudzy Products, Services or Additional Services or (ii) to cause any Referral Partner Customer or its vendors to terminate its participation in any of Services, Products or Additional Services. (ii) Sudzy agrees that during the Term of this Agreement, and for a period of three (3) years thereafter it shall not, and will not knowingly cause or permit any of its employees, agents, principals, affiliates, subsidiaries or any other person or entity to solicit any Referral Partner Customer who is processing credit cards with Referral Partner to any credit card processing service, including but not limited to any such service offered by Sudzy. (iii) Each party will remain responsible for resulting damages from such prohibited solicitation as set forth in this Section 7(c) even after the termination of this Agreement. Each party agrees that the compensation payable to the non-breaching party hereunder is sufficient to justify the imposition and enforcement of the terms of this section and this Agreement generally.
Data Security.
Referral Partner agrees that it shall not sell or license any data identifying or describing Referral Partner Customers as Sudzy merchants.
Indemnity.
Each party (the “Indemnifying Party”) shall indemnify and hold the other party (the “Indemnified Party”) harmless from any damages and costs, including attorney’s fees and settlement amounts, as such costs and damages are incurred by the Indemnified Party arising from (i) breach of the terms and conditions of this Agreement or (ii) any claim brought against the Indemnified Party, its officers, directors or shareholders alleging injury or damage arising from or in connection with the Indemnifying Party’s fraud, willful misconduct or breach of any of the terms of this Agreement.
Representations and Warranties.
Referral Partner represents and warrants that (i) all information provided by Referral Partner as part of the registration process or in connection with its activity as a Referral Partner is complete and accurate in all material respects; (ii) that it has the due authority to enter into this Agreement, and (iii) that entering into this Agreement with Sudzy will not breach any agreement Referral Partner has with any third party.
Miscellaneous
(a) Intellectual Property. Referral Partner agrees that as between the parties, Sudzy owns the copyrights, trade secrets and patents rights (“Intellectual Property”) embodied in the Products, Services, Additional Services, Marks and Collateral Materials, including any improvements thereto, regardless of the provenance of any such improvement and that Referral Partner shall not hold itself out has holding any rights in such Intellectual Property other than the rights to use the Marks as expressly provided hereunder. As between the parties, Sudzy owns outright the Marks and Referral Partner shall not hold itself out as owning any interest in the Marks. Referral Partner shall not attempt to register any trademark that is in any way similar in appearance or sound to the Marks in any jurisdiction throughout the world nor will Referral Partner attempt to register or maintain any internet domain names containing text comprising or similar to any of the Marks. Referral Partner shall not contest the registration or oppose the application of Sudzy for any of the Marks in any jurisdiction throughout the world. Referral Partner agrees that any goodwill arising from Referral Partner’s use of the Marks shall inure to the sole benefit of Sudzy. Referral Partner shall not nor authorize any third party to copy, distribute, publicly perform, reverse engineer or decompile the Products, Services or Additional Services. No rights to any Intellectual Property of Sudzy are transferred or granted in this Agreement except certain limited rights to use the Marks and Collateral Material solely as expressly provided herein. All rights in the Products, Services or Additional Services are reserved by Sudzy. There are no implied rights of any kind.
(b) Assignment. Neither party may assign or delegate its rights or duties under this Agreement to another entity without the express written consent of the other party, provided that no such consent shall be required for an assignment to a successor in interest in connection with a merger transaction or sale of all or substantially all of a party’s assets or stock.
(c) LIMITATION ON LIABILITY: REFERRAL PARTNER ACKNOWLEDGES AND AGREES THAT EXCEPT AS SET FORTH HEREIN Sudzy MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT OR PROVISION OF THE SERVICES, PRODUCTS OR ADDITIONAL SERVICES TO ANY PARTY, WHETHER REFERRED BY REFERRAL PARTNER OR OTHERWISE. REFERRAL PARTNER’S ACTIVITIES CONTEMPLATED BY THIS AGREEMENT ARE BEING CONDUCTED AT REFERRAL PARTNER’S SOLE AND ABSOLUTE RISK. THE PRODUCTS, SERVICES AND ADDITIONAL SERVICES ARE BEING MADE AVAILABLE TO THE REFERRAL PARTNER AND REFERRAL PARTNER’S CUSTOMERS “AS IS” AND WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED. IN NO CASE WILL Sudzy BE LIABLE TO THE REFERRAL PARTNER FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT OR AS A RESULT OF CONDUCTING ACTIVITIES CONTEMPLATED HEREUNDER, IN EXCESS OF THE AGGREGATE AMOUNT PAID TO REFERRAL PARTNER FOR THE REFERRAL PARTNER FEE IN THE PRIOR 12 MONTHS FROM THE DATE THE CLAIM IS ASSERTED. IN NO CASE WILL Sudzy OR REFERRAL PARTNER BE LIABLE FOR CONSEQUENTIAL DAMAGES OR LOST PROFITS AND EACH PARTY WAIVES ANY CLAIM TO COLLECT SUCH CONSEQUENTIAL DAMAGES OR LOST PROFITS FROM THE OTHER PARTY FOR ANY REASON. REFERRAL PARTNER’S USE OF THE MARKS IS AT ITS SOLE AND ABSOLUTE RISK. IN NO CASE SHALL Sudzy BE LIABLE TO REFERRAL PARTNER FOR ANY FAILURE TO DELIVER OR ANY DEFECT IN ANY SOFTWARE, SERVICES, PRODUCTS OR ADDITIONAL SERVICES TO ANY REFERRAL PARTNER CUSTOMER.
(d) No Agency, Partnership or Joint Venture; No Third Party Beneficiaries. The parties agree that nothing in this Agreement establishes an agency, partnership or joint-venture and that the parties are acting as independent contractors. Use of the term “Referral Partner” shall not be the basis of asserting that the parties to this Agreement are partners. Referral Partner shall not hold itself out as an agent of Sudzy or as having any authority to bind Sudzy in any agreement. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.
(e) Notice. Referral Partner agrees that all notices from Sudzy to Referral Partner will be sent either to the email address Referral Partner has placed on file with Sudzy
(f) Titles and Headings, Severability. The titles and headings of this Agreement are for convenience and ease of reference only and shall not be utilized in any way to construe or interpret the agreement of the parties as otherwise set forth herein. Each covenant and agreement in this Agreement shall be construed for all purposes to be a separate and independent covenant or agreement. If a court of competent jurisdiction holds any provision (or portion of a provision) of this Agreement to be illegal, invalid, or otherwise unenforceable, the remaining provisions (or portions of provisions) of this Agreement shall not be affected thereby and shall be found to be valid and enforceable to the fullest extent permitted by law.
(g) Choice of Law and Forum. This Agreement shall be construed under the laws of the State of New York, USA as applied to contracts performed entirely within the state. Any dispute arising under this Agreement shall be exclusively heard in the state or federal courts residing in New York County, New York, USA. Each party hereto consents to the jurisdiction of such courts with regard to matters arising in connection with this Agreement and waives any claim it has that such a forum is inconvenient.
(h) Counterparts and Signature. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. The signatures to this Agreement may be evidenced by facsimile copies or PDF copies reflecting the party’s signature, and any such facsimile copy or PDF copy shall be sufficient to evidence the signature of such party as if it were an original signature.
Exhibit A: Onboarding Referral Partner Customers;
Partner Role and Responsibilities
Referral Partner will identify prospects for Sudzy Products or Services (each such merchant, a “Prospect Merchant”). Referral Partner will transmit the information regarding a Prospect Merchant via the designated Sudzy Lead Form. Sudzy POS will bill Merchant directly for (a) each month of Sudzy service (e.g., the price for Service for each Merchant register), and (b) the up-front hardware purchase. Referral Partner will complete the Sudzy Boarding Form, if applicable, to affiliate the Prospect Merchant Processing account to Prospect Merchant’s Sudzy Storefront (Boarding Form can be completed any time after the trail has been created). Referral Partner may be requested to provide on-site setup and support at its discretion and pricing. Sudzy will pay the agreed upon Referral Partner Fee to Referral Partner in accordance with the terms set forth in the Referral Agreement.
Exhibit B: Pricing Addendum
Referral Partner Fee:
In consideration for operating as a Referral Partner of Sudzy Services in compliance with this Agreement, Sudzy shall pay Referral Partner a one-time special payment for each Referral Partner Customer (each such payment, a “Referral Partner Fee”) in the amounts as follows: $150 for each Referral Partner Customer location.
Each Referral Partner Fee shall be paid to Referral Partner within 30 days of Referral Partner Customer(s) entering into a Referral Partner License and the receipt by Sudzy of Referral Partner Customer(s) payment.