The following describes the referral relationship you are entering into with Lean Sensory Systems, Inc. (the "Referral Partner Program"). The Referral Partner Program terms and conditions are set forth below and on a separate signature page (the "Signature Page" and together with the following terms and conditions, the "Referral Partner Terms"). These Referral Partner Terms cover your responsibilities as a referrer and our responsibilities to you. You should read the entire Referral Partner Terms carefully as each of the terms and conditions are important to our working relationship. "We", "Our", and "Us" refers to Lean Sensory Systems, Inc., a New York corporation doing business as DraughtLab. "You", "Your", and "Yours" refers to the legal entity or natural person entering into this Agreement with Us in your capacity as a participant in the Referral Partner Program (a "Referral Partner").
Once You and Lean Sensory Systems, Inc. both Sign the Signature Page, You will Enter into a Binding Agreement Governed by the Referral Partner Terms
If Your application for entrance into the Referral Partner Program is accepted, We will ask that You sign and return a Signature Page to Us. We will then sign and return a copy of the fully executed Signature Page to You. Once signed by both parties, the Referral Partner Terms will become the terms and conditions of the binding agreement (the "Agreement") between You and Us. In the event of a conflict between the terms and conditions set forth below and those set forth in the Signature Page, the terms and conditions set forth on the Signature Page govern.
How to Become a Referral Partner
In order to become a Referral Partner, We must invite You to apply to the Referral Partner Program. Our invitation will include an application, which You will be asked to complete and submit (the "Application"). Submitting an Application does not guarantee inclusion in the Referral Partner Program. We evaluate every application and We are the sole and exclusive decision-maker regarding acceptance into the Referral Partner Program. We will notify You within a reasonable time, via email, whether the application has been accepted or rejected. We are not obligated to provide You any explanation for Our rejection, and We may reject the Application for any reason.
What is the Referral Partner Program
As a Referral Partner, you may earn a credit against your DraughtLab and/or Sample Ox subscription account(s) plus a cash reward (a "Referral Fee") in an amount equal to 10% of Our revenue from Your referred customer’s (each a "Referred Customer") DraughtLab and/or Sample Ox subscription(s) for the first 12 months of the Referred Customer’s subscription(s). The Referral Fee will only be earned upon Our receipt of the Referred Customer’s DraughtLab and/or Sample Ox subscription fees ("Referred Customer Revenue"). Revenues received from hourly or fixed fee services are not included in calculating a Referral Fee under the Referral Partner Program.
When a Referral Partner generates eleven (11) or more Referred Customers in any twelve-month period, We will increase the percentage of the Referral Fee earned from 10% to 15% with respect each Referred Customer after ten (10) in any given twelve-month period.
Conditions to Being a Referral Partner
We welcome Your participation in the sales process if it meets the Acceptable Use Policies set forth below. Final sales, scoping, and delivery of services to Referred Customers are Our sole responsibility.
How to Make a Referral
To make a referral, You must complete a Referral Form and email the completed form to Us at sales@leansensory.com. We will notify You within a reasonable time, via email, if the referral has been accepted and We will notify You when a referral becomes a Referred Customer. You may also request a status report on Your referrals and/or Referred Customers.
Rules for Earning a Referral Fee
To earn Referral Fees on Referred Customer Revenue from a "Qualified Sale", the Referred Customer Revenue must:
We have sole discretion and will use Our reasonable judgment in determining if and when a Referral Fee is earned.
How the Referral Fee is Credited and/or Paid
If you are one of Our customers and have an active subscription for Our DraughtLab Pro and/or Sample Ox services (an "Active Customer") we will first credit Your Referral Fee toward Your subscription account(s) and any remaining balance will be paid to You. If you are not an Active Customer, we will pay you the full amount of the Referral Fee. We will credit the Referral Fee and/or make payments every quarter according to the following schedule:
We are not responsible for any delays caused by third-parties responsible for the delivery or transmission of a Referral Fee payment, e.g., a bank, the United States Postal Service, FedEx, UPS, a money transmitter, etc. We shall provide You with a quarterly report summarizing Your referral activity and the Referral Fees paid for Qualified Sales.
No Referral Fee will be paid until the Referral Partner agrees in writing to a payment method. No Referral Fee will be paid until We receive a completed IRS W-9 or W-8 BEN form from the Referral Partner.
Treat Potential Customers as We Would
You agree not to use the Referral Partner Program for any unlawful purpose, or any purpose prohibited under this Agreement. You agree not to use the Referral Partner Program in any way that might damage our websites, products, services, reputation, goodwill, or general business.
You agree not to use the Referral Partner Program:
As a Referral Partner, you are representing the DraughtLab brand and values. We treat all people equally and with kindness and expect our partners to do the same.
No Unauthorized Representations
The Referral Partner shall refrain from making any representations, warranties, or guarantees to referrals, prospective customers, or trade industry participants with respect to the specifications, features or capabilities of Our product offerings that are deceptive, misleading, or otherwise inconsistent with the literature distributed by Us. The Referral Partner is not Our agent and has no authority to execute contracts or otherwise act on Our behalf.
This Agreement does not create an exclusive relationship between You and Us. You are free to work with referral partner program providers in any industry. This agreement imposes no restrictions on Us to work with any individual or company We may choose.
We hereby grant You a non-exclusive, non-transferable, revocable license to use Our name, trademarks, service marks and brand, as applicable, solely and exclusively in conjunction with identifying Us and/or Our brand for the purpose of generating referrals in conjunction with the Referral Partner Program.
You hereby provide Us a non-exclusive, non-transferable, revocable license to use Your name, trademarks, service marks and brand, as applicable, to market Our Referral Partner Program.
Agreement Term
The term of this Agreement will begin on the date the Signature Page is fully signed. It may be terminated by either party at any time with or without cause.
This Agreement will automatically terminate if one-year lapses between the date We receive Your Application and Our receipt of a Qualified Sale, or if one-year lapses between Qualified Sales. You may re-apply for the program in such events.
Termination for Cause
We may terminate this Agreement for cause if the Referral Partner materially breaches this Agreement. If this Agreement is terminated for cause, previously earned and uncredited and/or unpaid Referral Fees are forfeit.
Effect of Termination
If this Agreement is terminated without cause, by either party, You will earn and be credited and/or paid Referral Fees based on Referred Customer Revenue received by Us during the quarter in which the termination occurs. No further Referral Fees will be earned, credited and/or paid after the quarter in which this Agreement is terminated.
Our Indemnification of the Referral Partner
We will defend the Referral Partner from and against any and all third-party claims, actions, suits, proceedings, and demands alleging the that the use of the Referral Partner Program as permitted under this Agreement infringes upon or misappropriates a third-party's intellectual property rights (a "Claim Against the Referral Partner"), and We will indemnify the Referral Partner for all reasonable attorney's fees incurred and damages and other costs finally awarded against the Referral Partner in connection with or as a result of a final non-appealable judgment from a court of competent jurisdiction, or settlement We approve of, in connection with a Claim Against the Referral Partner; provided, however, that We will have no liability if a Claim Against the Referral Partner arises from the Referral Partner’s original content. The Referral Partner must provide Us with prompt written notice of any Claim Against the Referral Partner and allow Us the right to assume the exclusive defense and control and the Referral Partner must cooperate with any reasonable requests to assist in Our defense and settlement of such matters. This section states Our sole liability with respect to, and the Referral Partner’s exclusive remedy against Us for, any Claim Against the Referral Partner.
Your Indemnification of Us
The Referral Partner will defend Us from and against any and all third-party claims, actions, suits, proceedings, and demands and will indemnify Us for all reasonable attorney's fees incurred and damages and other costs finally awarded against Us in connection with or as a result of a final judgment from a court of competent jurisdiction or settlement the Referral Partner approves of, arising from or related to the Referral Partner’s use of its original content provided to a third-party as a participant in the Referral Partner Program (a "Claim Against Us"). We must provide the Referral Partner with a prompt written notice of any Claim Against Us and allow the Referral Partner the right to assume the exclusive defense and control and We must cooperate with any reasonable requests to assist the Referral Partner’s defense and settlement of such matter. This section states Your sole liability to Us with respect to any Claim Against Us.
Limitation of Indemnifications
Notwithstanding anything contained in the preceding two paragraphs, (a) an indemnified party will always be free to choose its own counsel if it pays for the cost of such counsel and (b) no settlement may be entered into by an indemnifying party without the express written consent of the indemnified party (such consent not to be unreasonably withheld) if (i) the third-party asserting the claim is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified party, (iii) the settlement does not include a full release of liability for the indemnified party, or (iv) the settlement includes terms other than a full release of liability for the indemnified party and the payment of money.
OTHER THAN IN CONNECTION WITH OUR INDEMNIFICATION OBLIGATIONS SET FORTH ABOVE, WE WILL NOT BE LIABLE FOR ANY DAMAGES THAT MAY OCCUR TO YOU AS A RESULT OF YOUR PARTICIPATION IN THE REFERRAL PARTNER PROGRAM. THE MAXIMUM LIABILITY OF LEAN SENSORY SYSTEMS, INC. ARISING FROM OR RELATING TO THIS AGREEMENT IS LIMITED TO SIX HUNDRED ($600) US DOLLARS. THIS SECTION APPLIES TO ANY AND ALL CLAIMS BY YOU, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, CONSEQUENTIAL OR PUNITIVE DAMAGES, NEGLIGENCE, STRICT LIABILITY, FRAUD, OR TORTS OF ANY KIND. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The sections titled "Effect of Termination", "Our Indemnification of the Referral Partner ", "Your Indemnification of Us", "Limitation of Indemnifications", "Limitation of Liability", and "Survival" will survive any termination or expiration of this Agreement.
Force Majeure
Neither We nor the Referral Partner will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond their reasonable control, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and/or governmental action.
Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to this Agreement.
Electronic Communications Permitted
Electronic communications are permitted by both parties under this Agreement, including email. For any questions or concerns, please email Us at the following address: legal@leansensory.com. We will email You at the email address provided by You on the Signature Page, which address may be changed by You from time to time by providing Us with written notice of such change.
Modifications
As Our business evolves, We may change the Referral Partner Terms. If We make a material change, We will provide You with reasonable notice prior to the change taking effect by emailing such notice to Your email address. You may review the most current version of the Referral Partner Terms at any time by visiting this webpage and reviewing the Signature Page. The materially revised agreement will become effective on the date set forth in Our notice. If You do not agree to the modifications, You may choose to terminate this Agreement.
Waiver
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.
Severability
This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the parties' objectives set forth in the original provision to the fullest extent permitted by law and the remaining provisions of this Agreement will remain in effect.
Assignment
Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to a corporate affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. The Referral Partner will always keep its contact information current by notifying Us of any changes. Any purported assignment in violation of this section is void ab initio. A party's sole remedy for any purported assignment by the other party in breach of this section will be, at the non-assigning party's election, termination of this Agreement upon written notice to the putative assigning party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
Dispute Resolution
The parties will mutually attempt to settle any disagreements through amiable negotiations. If the disagreement cannot be settled through negotiations, then this Agreement, and any disputes arising out of, or related hereto, will be governed exclusively by the applicable laws of the State of New York, without regard to conflicts of laws rules. Each party hereby agrees to submit to the exclusive jurisdiction of the Supreme Court of the State of New York, with venue in Monroe County, New York, or of the United States District Court for the Western District of New York with venue in Monroe County, New York. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney's fees.
Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.