Terms and Conditions
REFERRAL PARTNER AGREEMENT
THIS REFERRAL PARTNER AGREEMENT (this “Agreement”), is entered into by and between Geniecast, LLC, a Missouri limited liability company with its principal place of business at 555 Washington Avenue, Suite 400, St. Louis, Missouri 63101 (“Geniecast”), and the approved Referral Partner participating “Geniecast Partner Program” (“Partner,” and together with Geniecast, the “Parties,” and each, a “Party”).
WHEREAS, Geniecast operates an online marketplace of thought leaders, athletes, speakers, celebrities and consultants, available via two-way, live video broadcast (“Programs”), on https://www.geniecast.com
WHEREAS, Geniecast and Partner desire to associate with each other whereby Partner features Geniecast’s Programs and refers visitors from the Digital Referral Methods (as defined below) to Geniecast’s Site.
NOW, THEREFORE, in consideration of the representation, warranties, and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. Referral Process. Geniecast shall deliver to Partner hyperlink text, approved logo and images, and other marketing and advertising materials (the “Media”) to be featured in electronic communications and websites (the “Digital Referral Methods”) for the purpose of directing visitors to Geniecast’s Site. Partner shall place the Media on the Digital Referral Methods.
(a) Referral Fee. Geniecast agrees to pay Partner a referral fee as set forth in the Geniecast Partner Program platform, which shall be calculated as a percentage of gross sales generated from persons or entities on Geniecast’s Site (“Customers”) that Geniecast’s online tracking system indicates as having originated from and purchased directly through, the Media on the Digital Referral Methods, less any direct costs, such as sales tax, special service fees, late charges, collection costs, imports/export duties, any other payments made to Geniecast not included in the price for the purchased product, amounts attributable to credit card fraud, deductions, credits given to customers, discounts, charge-backs, bad debt right-off and returned goods, if any (“Commissionable Revenues”).
(b) Exclusions from Commissionable Revenues. Commissionable Revenues excludes sales to (i) current Geniecast customers, (ii) Customers who do not complete their purchases within one-hundred eighty (180) calendar days of their first visit to Geniecast’s Sites through the Digital Referral Methods, (iii) Customers whose prior purchase has already generated a Referral Fee paid to Partner or other party in the past, and (iv) any of Partner’s employees, agents, affiliates, stockholders, members, officers, directors or managers.
(c) No Representations Regarding Income Potential. Geniecast makes no representations or warranties regarding the amount in Referral Fees which may be paid Geniecast to Partner, and specifically disclaims any and all warranties relative to earning potential under this Agreement.
3. Parties’ Obligations.
(a) Partner will display the Media, as rendered by Company and unmodified by Partner, on all Referral Websites throughout the Term of this Agreement.
(b) Geniecast shall track the relevant actions as set forth in this Agreement and provide Partner with regular accountings of the total Referral Fees due to Partner, and shall pay all Referral Fees due to Partner, if any, and only if the sales price is collected in full, within thirty (30) calendar days after the end of each month by check to the address Geniecast has on file for Partner. Geniecast shall deduct in subsequent months any Referral Fee paid to Partner for products that were later returned by the Customer or refunded by Geniecast, or for any other cause for overpayment. Notwithstanding the foregoing, Geniecast shall not disburse Referral Fees to Partner unless the aggregate Referral Fee balance is One Hundred Dollars ($100.00) or more. Referral Fees of amounts less than One Hundred Dollars ($100.00) will accrue to Partner’s account and be paid when Partner’s Referral Fees equal or exceed that minimum. Geniecast shall provide Partner with an annual report showing the basis for calculating the Referral Fees.
(c) Partner shall not make any representations or warranties with respect to the specifications, features, or functionality of Geniecast’s products or services. Partner shall not make any false or misleading representations with respect to Geniecast or Geniecast’s products or services.
(d) Partner agrees, that neither Partner nor any of its affiliates, will impose or collect any fee, including but not limited to any application fee, referral fee, or funding fee from any Customer for any product or service offered under or related to Partner’s performance under this Agreement.
(e) Each Party shall be responsible for its own costs and expenses under this Agreement, including but not limited to costs associated with creating, hosting, modifying, or improving its own website; costs of inserting the Media into the Digital Referral Methods; Internet or offline marketing; and all other costs and expenses.
(f) All Customers shall be Geniecast’s customers, and not Partner’s customers, relative to Geniecast’s products.
(g) Geniecast shall be solely responsible for responding to Customer inquiries, placing and fulfilling product orders, Customer billing and collection, and delivering products, relative to Customers entering Geniecast’s Site through the Digital Referral Methods. Geniecast may set its pricing, special offers, products, and the terms under which products are offered, and may modify the foregoing at any time without notice to Partner.
(h) Geniecast shall have no obligation to provide Partner with any specific information about any Customer, including but not limited to personally identifiable information, regardless of whether the Customer accesses Geniecast’s Site through the Digital Referral Methods.
(i) Each Party represents that none of its websites and other communication methods referred to in this Agreement contains or links, now or hereafter, to any content, web page or website that contains any: (i) nudity, pornography, or other sexual or adult material; (ii) hate propaganda or material that encourages or promotes illegal activity or violence; (iii) content that violates or infringes in any way upon the statutory, common law, or proprietary rights of others, including but not limited to copyrights, trademark rights, patents, or any other third party intellectual property, contract, privacy, or publicity rights; (iv) material that promotes or utilizes software or services designed to deliver unsolicited email; (v) material that violates any local, state, or federal law, rule or regulation; (vi) viruses, Trojan horses, worms, time bombs, cancel bots or other similar harmful or deleterious programming routines; or (vii) misrepresentations or content that is threatening, abusive, harassing, defamatory, obscene, profane, indecent, or otherwise objectionable, offensive, or harmful, as determined in the other Party’s sole discretion.
(j) Each Party will comply with all local, state, and federal laws and regulations governing its actions under this Agreement. Without limiting the foregoing obligation, each Party agrees that it will comply with all applicable federal, state and local law that govern marketing email, including without limitation, the CAN-SPAM Act of 2003 and all other anti-spam laws.
4. Term; Termination.
(a) Term. The term of this Agreement shall commence on the Effective Date and remain in full force and effect until terminated by either Party.
(b) Termination. Either Party may terminate this Agreement within ten (10) business days written notice to the other Party. Upon termination, Partner shall immediately remove all Media and other references to Geniecast contained on the Digital Referral Methods. Geniecast shall remit to Partner all Referral Fees accrued to Partner’s account as of the termination date, provided, however, that if Partner’s total Referral Fees due hereunder are less than One Hundred Dollars ($100), such accrued Referral Fees shall be forfeited.
(c) Post-Termination Non-Solicitation. Partner agrees that for the duration of the Term and for one (1) year following termination of this Agreement, Partner will not, either directly or through others, solicit or attempt to solicit any employee, independent contractor, consultant, Genie, Customers, or end-user of Geniecast to terminate his or her relationship with Geniecast in order to become an employee, consultant, independent contractor, customer, or use to, for, or of any other person or entity.
5. Intellectual Property. Each Party’s intellectual property shall remain its own. Notwithstanding the foregoing, Geniecast hereby grants Partner a limited, revocable, non-exclusive, worldwide, non-sublicensable right and license during the Term, subject to the conditions and restrictions set forth below, to use the Media, including Geniecast’s trademarks, service marks, web page titles, and logos, as provided by Geniecast, (collectively, “Materials”) for the purposes of promoting, advertising, announcing or marketing Geniecast and as necessary to fulfill Partner’s obligations under this Agreement. Partner shall not modify the Materials in any way at any time without Geniecast’s express written consent. No right or license other than those expressly granted herein are granted to Partner hereunder. All other rights are expressly reserved. This Agreement is a license and not a sale, and Geniecast is and shall at all times remain the sole and exclusive owner of its Materials. Geniecast has the right to audit and evaluate Partner’s use of the Materials and whether the Digital Referral Methods contain content that, in Geniecast’s sole discretion, is not acceptable to Geniecast or is inconsistent with the image that the Geniecast wishes to create in association with Geniecast’s Site or its brand or if the Digital Referral Methods contain any material that appears to Geniecast to violate any of Geniecast’s patent, trademark, copyright, trade secret, confidential information, or other property rights, or those of any other party.
6. Relationship. The Parties are independent contractors and nothing contained herein shall be construed as creating a relationship as partners, joint venturers, shareholders/members, employer/employee, or agent/servant. Partner shall have no power or authority to bind Geniecast to any obligation, agreement, debt, or liability, and shall not hold itself out as an agent or representative of Geniecast. The Parties acknowledge that, except as set forth herein, this Agreement sets forth a non-exclusive relationship between the Parties. Each Party shall be solely responsible for its own taxes, including withholding taxes, interests and penalties, and all benefits related to the services hereunder.
7. Indemnity. Partner shall indemnify, defend, protect, and hold harmless Geniecast and its respective officers, directors, managers, employees, shareholders, members, and agents from and against any and all liability, losses, damages, injuries, expenses, and costs, including but not limited to reasonable attorneys’ fees and reasonable settlement expenses that may at any time be incurred thereby by reason of any claim, suit, action, or other proceeding relating to, arising from, or in connection with (a) any breach of this Agreement, (b) payment of Referral Fees, (c) services provided under this Agreement, or (d) any of Partner’s acts or omissions with respect to Geniecast or the Customers.
8. Disclaimer of Warranty. GENIECAST DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. THE MEDIA AND GENIECAST’S SITE ARE PROVIDED HEREUNDER ON AN “AS-IS” AND AS AVAILABLE BASIS, AND GENIECASTS DISCLAIMS ALL WARRANTIES THAT THE MEDIA OR GENIECAST’S SITE WILL BE ERROR-FREE, VIRUS-FREE, UNINTERRUPTED, OR SECURE OR OPERATE OTHER THAN AS SET FORTH HEREIN.
(a) Notice. All notices that either Party is required or may desire to give to the other Party hereunder will be given in writing and will be deemed to have been delivered and given (i) on the delivery date if delivered by email; (ii) on the delivery date if delivered personally to the Party to whom the same is directed; (iii) one business day after deposit with a commercial overnight carrier, with written verification of receipt; or (iv) three business days after the mailing date, whether or not actually received, if sent by U.S. mail, return receipt requested, postage and charges prepaid, or any other means of rapid mail delivery for which a receipt is available:
If to Geniecast: Geniecast, LLC
Attn: Douglas Hall, EVP
555 Washington Avenue, Suite 400
St. Louis, Missouri 63101
With a copy to: Steven Masur, Esq.
Masur Griffitts + LLP
65 Reade Street
New York, New York 10007
If to Partner: Address as listed in the Partner’s Geniecast Partner Program account.
(b) Governing Law; Venue. This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of Missouri, without regard to the conflict of laws provisions of such State. Any legal suit, action or proceeding arising out of or based upon or relating to this Agreement will be resolved by litigation in the courts located within the City of St. Louis in the State of Missouri. The Parties hereby consent to the exclusive jurisdiction and venue of such courts, will accept service of process by mail, and hereby waive any jurisdictional or venue defenses otherwise available to them.
(c) Amendments. This Agreement, and each of the terms and provisions hereof, may only be amended, modified, waived, or supplemented by an agreement in writing signed by each Party.
(d) Assignment. Neither Party may assign, transfer, or delegate any or all of its rights or obligations under this Agreement without the prior written consent of the other Party; provided, however, that Lender may assign this Agreement to an affiliate, a successor-in-interest by consolidation, merger or operation of law or to a purchaser of all or substantially all of the Party’s assets. No assignment will relieve the assigning Party of any of its obligations hereunder. Any attempted assignment, transfer, or other conveyance in violation of the foregoing will be null and void. This Agreement will inure to the benefit of and be binding on each of the Parties and each of their respective permitted successors and permitted assigns.
(e) Representations and Warranties of the Parties. Each signatory to this Agreement hereby represents and warrants that he or she is duly authorized and has the power and authority, organizational or otherwise, to execute and deliver this Agreement and that the performance of the Parties’ obligations hereunder has been duly authorized.
(f) Counterparts. This Agreement may be executed in several counterparts and all counterparts so executed by all the Parties hereto and affixed to this Agreement will constitute a valid and binding agreement, even though all the Parties have not signed the same counterpart. Facsimile and email transmissions of signature pages shall constitute originals for all purposes.
(g) Severability. If any provision of this Agreement is declared invalid or unenforceable, such provision will be deemed modified to the minimum extent necessary and possible to render it valid and enforceable. The unenforceability or invalidity of any provision will not affect any other provision of this Agreement, and this Agreement will continue in force and effect and will be construed and enforced as if such provision had not been included or had been modified as provided above.
(h) Force Majeure. Neither Party shall be liable, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement due to any of the following causes beyond such Party’s reasonable control (such causes, “Force Majeure Events”): (i) acts of God; (ii) flood, fire or explosion; (iii) war, invasion, riot or other civil unrest; (iv) actions, embargoes or blockades in effect on or after the date of this Agreement; (v) action by any Governmental Authority, (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, service interruptions or other industrial disturbances; (viii) shortage of adequate power; or (ix) any other event that is beyond the reasonable control of such Party. The Party suffering a Force Majeure Event shall give notice to the other Party within five (5) business days of the Force Majeure Event, stating the period of time the occurrence is expected to continue, and shall use diligent efforts to end the failure or delay and ensure that the effects of such Force Majeure Event are minimized.
(i) Entire Agreement. This Agreement is the sole and entire agreement of the Parties regarding the subject matter hereof, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
(j) No Third-Party Beneficiaries. This Agreement benefits solely the Parties hereto and their respective permitted successors and permitted assigns, and nothing in this Agreement, express or implied, confers on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.