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FIRSTUP REFERRAL AGREEMENT
This Referral Partner Agreement (the “Agreement”) is a legal agreement between you (“Referral Partner”) and Firstup, Inc., a Delaware corporation, with offices at 123 Mission Street, Floor 25, San Francisco, CA 94105 (“Firstup”), herein being collectively referred to as the “Parties.” BY CLICKING “I CONSENT” AND SUBMITTING A PARTNER APPLICATION ON THIS PAGE, YOU AGREE TO AND ARE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. This Agreement shall be effective as of the date of such form submission (“Effective Date”).
Terms and Conditions:
1.1 “Referral” means a reasonably qualified and bona fide client or customer for Services for which a Party (“Partner”) is directly responsible for soliciting and referring to the other Party (“Firstup”) in writing or by email.
1.2 “Referral Date” means the date of transmission of a Referral by Partner to Firstup.
1.3 “Existing Client” means any client or customer to which Firstup has furnished Services within the period of two (2) years prior to the applicable Referral Date of a Referral.
2. Referral of Potential Clients or Customers by Partner. During the term of this Agreement, Partner shall undertake commercially reasonable best efforts to send Referrals to Firstup. For each Referral, Partner will email Firstup at the email address provided by Firstup.
3.1 Acceptance. Firstup may reject any Referral that references any Existing Client or references a company or client that Firstup or another of Firstup’s referral agents has commenced discussions with regarding the Firstup’s services.
3.2 Payment of Referral Fees. If, within one hundred eighty (180) days of the applicable Referral Date, a Referral enters into an agreement with Firstup for Firstup’s services, then Partner shall be entitled to receive a fee (“Referral Fee”) equal to _10_% of the net income received from a Referral during the first year of the term of the agreement between the Referral and Firstup. Firstup will pay the applicable Referral Fee, if any, to Partner within sixty (60) days of Firstup’s receipt of the qualifying fees from the corresponding Referral. Notwithstanding anything herein to the contrary, in no event shall be obligated to pay a Referral Fee for any Referral involving an Existing Client.
3.3 Resolution of Conflicts Regarding Referral Fees. If any third Party should make a claim for any Referral Fee or part thereof, then the Referral Fee earned for any closing hereunder shall be apportioned among the claimants for same as determined by Firstup in its sole discretion. Firstup shall make a reasonable effort to consult with all relevant parties regarding any apportionment. The final decision of Firstup regarding the apportionment of any Referral Fee due and payable hereunder shall be final.
4. Confidential Information.
4.1 Definition of Confidential Information. The parties anticipate that Firstup may disclose Confidential Information to Partner. For purposes hereof, “Confidential Information” means business or technical information disclosed by either Party to the other Party, including, without limitation, information relating to a Party’s product plans, customers, designs, costs, products and services, pricing, finances, marketing plans, business opportunities, personnel, research and development, that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing Party to the receiving Party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, the terms and conditions of this Agreement is the Confidential Information of both parties.
4.2 Confidentiality Obligations. Each Party will not use the other Party’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third Party, except to those of its employees and subcontractors that need to know such Confidential Information for the performance of this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Each Party will use all reasonable efforts to maintain the confidentiality of the other Party’s Confidential Information in its possession or control, but in no event less than the efforts that it ordinarily uses with respect to its own confidential information of similar nature and importance. The foregoing obligations will not restrict either Party from disclosing the other Party’s Confidential Information or the terms and conditions of this Agreement: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the Party required to make such a disclosure gives reasonable notice to the other Party to enable it to contest such order or requirement; (ii) on a confidential basis to its legal or professional financial advisors; (iii) as required under applicable securities regulations; or (iv) on a confidential basis to present or future providers of venture capital and/or potential private investors in or acquirers of such Party. The restrictions set forth in this Clause 5 will remain in effect during the term of this Agreement and for a period of three (3) years thereafter.
4.3 Confidentiality Exclusions. The obligations set forth in Clause 4 will not apply to any Confidential Information that: (i) is in or enters the public domain without breach of this Agreement by the receiving Party; (ii) the receiving Party lawfully receives from a third Party without restriction on use or disclosure; (iii) the receiving Party knew prior to receiving such information from the disclosing Party without breach of a nondisclosure obligation, or (iv) the receiving Party independently develops without reference to the other Party’s Confidential Information.
5. No Exclusivity. This Agreement shall not be construed to be a commitment by either Party to work exclusively with the other Party regarding referrals of potential new business or any other business activities.
6. Representations and Warranties. Each Party represents and warrants that (a). it has the necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to grant the rights herein granted; (b) it will conduct business in a manner that reflects favorably on the other Party and its products and services; (c) it will make no false or misleading representations with respect to the other Party and its products and services; and (d) it will make no representations, warranties or guarantees with respect to the specifications, features or capabilities of the other Party’s products and services that are inconsistent with the other Party’s Marketing Materials. Except as expressly set forth in this Clause 6, to the fullest extent permitted by applicable law, each Party disclaims all warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, fitness for a particular purpose or non-infringement, and any warranties arising out of course of dealing or usage of trade.
7. Indemnity. Nothing in this Clause 7 shall restrict or limit a Party's general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under the indemnities in this Clause 7.
Subject to Clause 8, Partner will indemnify, defend and hold Firstup and its affiliates, and their respective officers, directors, employees, consultants and agents harmless from and against all damages, liabilities, costs, charges and expenses, including reasonable attorneys’ fees, awarded in a final judgment against or paid in settlement by Firstup, arising out of or resulting from any third Party claim based on a breach or alleged breach by Partner of any representation or warranty specified in Clause 6.
Subject to Clause 9, Firstup will indemnify, defend and hold Partner and its affiliates, and their respective, officers, directors, consultants and agents harmless from and against all damages, liabilities, costs, charges and expenses, including reasonable attorneys’ fees, awarded in a final judgment against or paid in settlement by Partner arising out of or resulting from any third Party claim relating to any breach or alleged breach by Firstup of any representation or warranty specified in Clause 6.
8. Indemnity Procedure. The Party seeking indemnification and defense under Clause 7, as the case may be (the “Indemnified Party”), will give prompt written notice of any claim to the other Party (the “Indemnifying Party”). In addition, the Indemnified Party will allow the Indemnifying Party to direct the defense and settlement of any such claim, with counsel of the Indemnifying Party’s choosing, and will provide the Indemnifying Party, at the Indemnifying Party’s expense, with information and assistance that is reasonably necessary for the defense and settlement of the claim. The Indemnified Party reserves the right to retain counsel, at the Indemnified Party’s sole expense, to participate in the defense of any such claim. The Indemnifying Party may not settle any claim without the Indemnified Party’s prior written consent, if the settlement terms would adversely affect the Indemnified Party or its rights under this Agreement.
9. Limitation of liability. Nothing in these Terms shall limit or exclude either Party's liability for (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors; (ii) fraud or fraudulent misrepresentation; or (iii) any matter if and to the extent that it would be unlawful to exclude or restrict liability for such matter. Firstup’s total cumulative liability for damages of any kind arising out of this agreement shall be limited to the Referral Fees payable by Firstup hereunder. Neither Party shall be liable to the other or to any other person for any indirect, consequential or special damages, of any character, whether in an action in contract, tort, or otherwise, arising out of or in connection with this agreement, even if the Party causing the damage has been advised of the possibility of such damages. Some states or countries do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to the full extent as above indicated.
10. Term of Agreement; Survival. The initial term of this Agreement shall commence as of the Effective Date and shall continue for a period of one (1) year, after which this Agreement shall continue automatically from month-to month, unless terminated as provided herein. Notwithstanding the forgoing, either Party may terminate this Agreement at any time and for any reason (or no reason) by providing thirty (30) days’ advance written notice to the other Party. The obligations contained in Clauses 3.2, 3.3, 4, 6, 7, 8, 9 and 11 shall survive the expiration or termination hereof.
Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement and fails to correct the breach within ten (10) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days. Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of California without regard to conflicts of law provisions and in the courts of the County of San Francisco. Waiver. The waiver by either Party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Severability. If any provision of this Agreement is found by any court, arbitrator or other competent authority to be void or unenforceable, the provision shall be deemed to be deleted from this Agreement and the remaining provisions shall continue in full force and effect. The parties shall nevertheless negotiate in good faith in order to agree the terms of a mutually satisfactory provision to be substituted for the provision which is void or unenforceable.Force Majeure. Neither Party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such Party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing Party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such Party continues to use commercially reasonable efforts to resume performance. Compliance with Laws. Each Party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States. Relationship between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent. Assignment. Neither Party may assign this Agreement without prior written consent unless in connection with a merger, acquisition, or sale of all or substantially all of its assets, and provided that the surviving entity has agreed to be bound by this Agreement. Entire Agreement. This Agreement together with the exhibits hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. Equitable Relief. You acknowledge that a breach by You of any confidentiality or proprietary rights provision of this Agreement may cause Firstup irreparable damage, for which the award of damages would not be adequate compensation. Consequently, Firstup may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity. Rights of Third-Party. A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any provisions of this Agreement. Independent Contractors. The relationship of the Parties shall be and shall at all times remain that of independent contractors and not that of employer and employee, franchisor and franchisee, joint ventures or partners. This Agreement does not establish either Party as the other Party’s agent or representative for any purpose. Neither Party shall have any authority of any kind to bind the other Party in any respect whatsoever. Without limiting the generality of the preceding sentence, neither Party is authorized to accept orders or to enter into contracts or any obligation in the other Party’s name, or to transact any business on behalf of the other Party. Counterparts. This Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument. Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect. Notices. All notices given under this Agreement must be posted by first class mail or sent by email to the address or email address of the other Party (in the case of the Referral Partner, all notices will be sent to the email address provided on the Partner application page here) or any other address or number notified by one Party to the other in writing after the formation of this Agreement. Any notice sent in this way will be treated as being given 48 hours after the time it was posted or four hours after it was emailed. Either Party will only have to show proof of postage or sending to prove notice was given. This clause shall not apply to the service of any proceedings or other documents in any legal action.