This Referral Agreement (“Agreement”) is between CRYPTO-ML LLC (“CRYPTO-ML”) and the entity or individual identified in CRYPTO-ML’s referral program application process (“Referral Partner”). If Referral Partner is an entity, then the individual entering into this Agreement on behalf of the entity hereby represents that he/she is an employee or agent of Referral Partner and has authority to enter into this Agreement on behalf of Referral Partner.
By proceeding with the registration process, Referral Partner acknowledges that it has read this Agreement, understands it, and agrees to be bound by it. The “Effective Date” is the date on which Referral Partner click the “Accept” button below.
1.1 “Customer” means each new and unique customer referred from Referral Partner through a Link (as defined in Section 2.2) that provides valid account and billing information and that has purchased from CRYPTO-ML Products for its own internal purposes and not for resale or use for or on behalf of others.
1.2 “Customer Agreement” means any applicable contract or agreement required to be signed by a Customer in order to access or use or purchase (as the case may be) a Product.
1.3 “Intellectual Property Rights” means all existing and future worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.
1.4 “Lead” means a potential Customer for the Products, as determined by Referral Partner in its reasonable discretion.
1.5 “Products” means the Crypto-ML service.
1.6 “Territory” means world-wide.
2.1 Subject to the terms and conditions of this Agreement, CRYPTO-ML hereby appoints Referral Partner, and Referral Partner hereby accepts such appointment, as a non-exclusive referral partner in the Territory to assist CRYPTO-ML in the promotion and sales of the Products. Referral Partner’s sole authority will be to promote the Products to potential Customers by sharing the Link (defined below) with potential Customers.
2.2 CRYPTO-ML shall provide Referral Partner with a unique URL link that will identify Referral Partner as the source of a Lead (“Link”). Each Link shall have a natural expiration date which CRYPTO-ML may change in its sole discretion. CRYPTO-ML may terminate a Link at any time for any reason, and may require Referral Partner to use a new Link. CRYPTO-ML will make available to Referral Partner information regarding the Products, including access to product information and marketing materials. Links shall have an expiration date as determined by CRYPTO-ML in its sole discretion.
2.3 During the term of this Agreement, Referral Partner will promote the Products to potential Customers.
3. REFERRAL FEES AND PAYMENT
3.1 Qualified Referrals. To qualify for a referral commission, each new Customer must (a) have been referred to CRYPTO-ML by Referral Partner through a Link, (b) use a Link at the time of purchasing a Product, and (c) not already be a Customer. “Qualified Referral” means each Customer that meets each of the conditions set forth in this Section 1. CRYPTO-ML is under no obligation to sell a Product to any Lead and may reject any Lead in its sole discretion.
3.2 Referral Fees. For each Qualified Referral, CRYPTO-ML will pay to Referral Partner a referral fee set forth in on the CRYPTO-ML referral program website at crypto-ml.com/affiliate-program (“Referral Fee”). Referral Fees are earned when CRYPTO-ML receives payment for the Product.
3.3 Subject to the terms and conditions of this Agreement, CRYPTO-ML will pay Referral Fees accrued within 30 days of the date that the aggregate amount owed is at least $100 through its then current payment process, which may include check, PayPal, or other payment method. Referral Partner shall maintain current and complete payment information with CRYPTO-ML. The payment of Referral Fees will be made in U.S. Dollars. Referral Partner shall be solely responsible for payment of any and all taxes (including but not limited to national, state, local and income taxes) and charges arising from or imposed on the payments made to Referral Partner by CRYPTO-ML. If a Qualified Referral requests and obtains a refund of any fees within six months after performance of the Products, the amount of the applicable Referral Fee paid to Referral Partner shall be refunded to CRYPTO-ML. Referral Partner will provide CRYPTO-ML all reasonably required documentation related to payment or Referral Fees or CRYPTO-ML’s regulatory requirements, prior to CRYPTO-ML processing payment. Referral Partner shall provide CRYPTO-ML all reasonably requested tax documentation (e.g., 1099 form) prior to paying any amounts hereunder. CRYPTO-ML will run reports to calculate Referral Fees monthly.
4.1 Referential Use of Trademarks. Except as expressly set forth in this paragraph, this Agreement does not grant Referral Partner any right, title, interest, or license in or to any of CRYPTO-ML’s names, word marks, logos, logotypes, trade dress, designs, or other trademarks. Referral Partner may use CRYPTO-ML’s corporate name, technology names and trademarks in plain text (but not logos, trade dress, designs or word marks in stylized form) to accurately identify and refer to CRYPTO-ML and its products and services, provided that Referral Partner’s use is not likely to cause confusion about the source of Referral Partner’s solutions or Referral Partner’s relationship with CRYPTO-ML and Referral Partner’s use is according to our usage guidelines. Additionally, and subject to the terms and conditions of this Agreement, CRYPTO-ML grants to Referral Partner a non-exclusive, non-transferable, royalty-free license, without the right to grant sublicenses, to display on Referral Partner’s website’s page dedicated to the Products, in accordance with CRYPTO-ML’s usage guidelines and only with CRYPTO-ML’s prior written approval, any logo or trademark provided by CRYPTO-ML to Referral Partner under this Agreement (the “Marks”), solely in connection with marketing the Products. Promptly upon notice from CRYPTO-ML, Referral Partner will suspend or modify its use of the Marks.
5. OTHER OBLIGATIONS
5.1 Marketing. Referral Partner will use commercially reasonable efforts to market and promote Products to Leads by distributing Links in the Territory.
5.3 Customer Agreement. Referral Partner acknowledges that a Customer may be required to sign a Customer Agreement with CRYPTO-ML in order to access, use or purchase a Product.
6.1 Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose to the other party (the “Receiving Party”) certain information regarding the business of the Disclosing Party and its suppliers, including technical, marketing, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). Any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party will be considered Confidential Information of the Disclosing Party.
6.2 Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party other than to perform obligations and exercise rights under the Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
6.3 The Receiving Party’s obligations under Section 6.2 with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body; provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.
6.4 Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information (except to the extent the copy was made as part of Receiving Party’s standard data backup process) promptly upon the written request of the Disclosing Party upon the expiration or termination of the Agreement. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 4.
6.5 Confidentiality of Agreement. Neither party will disclose any terms of the Agreement to anyone other than its attorneys, accountants, and other professional advisors except: (a) as required by law; (b) pursuant to a mutually agreeable press release; or (c) in connection with a contemplated transfer of such party’s business permitted by Section 10.3 (provided that any third party to whom the terms of the Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other party).
7.1 Warranties by Both Parties. Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.
7.2 Disclaimer of Warranty. THE EXPRESS WARRANTIES IN SECTION 1 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING SERVICES, ANY OTHER SOFTWARE AND SERVICES, AND CRYPTO-ML DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING. REFERRAL PARTNER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES PROVIDED HEREIN AND THAT NO WARRANTIES ARE MADE HEREIN BY ANY OF CRYPTO-ML’S SUPPLIERS.
7.3 Warranties Made by Referral Partner. Referral Partner will not make or publish any representations, warranties, or guarantees concerning Products.
8. Limitation of Liability. CRYPTO-ML’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF REFERRAL FEES PAID BY CRYPTO-ML TO REFERRAL PARTNER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL CRYPTO-ML BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, NOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THE AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF CRYPTO-ML HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REFERRAL PARTNER ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES AND THAT CRYPTO-ML WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON CRYPTO-ML’ IN ADDITION, CRYPTO-ML DISCLAIMS ALL LIABILITY OF ANY KIND OF CRYPTO-ML’ SUPPLIERS.
9. TERM AND TERMINATION
9.1 Unless earlier terminated pursuant to Section 9.2, the initial term of this Agreement will begin on the Effective Date and will continue for one year (“Initial Term”). Thereafter, this Agreement will automatically be extended for successive renewal terms of one year (each, a “Renewal Term”) unless either party gives written notice of non-renewal or conditions for renewal, at least 60 days before the expiration of the Initial Term or the then-current Renewal Term. The Initial Term and all Renewal Terms are collectively referred to as the “Term.”
9.2 A party may terminate this Agreement, effective immediately upon written notice to the other party, if such party breaches any provision of this Agreement and does not cure the breach within 15 days after receiving written notice thereof. CRYPTO-ML may terminate this Agreement for any reason upon 20 days prior written notice to the other party.
9.3 Effects of Termination. Upon termination by either party, (a) each party will immediately return all copies of the Confidential Information and all other property belonging to and/or received from the other party; and (b) Referral Partner will promptly return to CRYPTO-ML or destroy any and all copies of CRYPTO-ML’s materials in its possession. Referral Partner will not be entitled to any compensation or indemnity (whether for loss of rights, goodwill or otherwise) as a result of the termination of this Agreement in accordance with its terms. Sections 1, 6, 7, 8, 3 and 10 will survive expiration or termination of this Agreement for any reason.
10.1 Proprietary Rights. All Products and related documentation and material of CRYPTO-ML, and all worldwide Intellectual Property Rights therein, are the exclusive property of CRYPTO-ML and its suppliers. All rights in and to Products and Documentation not expressly granted to Referral Partner in this Agreement are reserved by CRYPTO-ML and its suppliers.
10.2 Compliance with Laws. Referral Partner will comply with all applicable export and import control laws and regulations in its use of Products and, in particular, Referral Partner will not export or re-export Products without all required government licenses and Referral Partner agrees to comply with the export laws, restrictions, national security controls and regulations of the all applicable foreign agencies or authorities.
10.3 Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under the Agreement to any third party. Any attempted assignment or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, CRYPTO-ML may assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.
10.4 Force Majeure. CRYPTO-ML shall not be liable under this Agreement for failure or delay in the performance of its obligations arising from any cause which is beyond the reasonable control of CRYPTO-ML.
10.5 Notices. All notices, consents, and approvals under the Agreement must be delivered in writing by courier, by facsimile (fax), by confirmed email or by certified or registered mail (postage prepaid and return receipt requested), to the other party at the address set forth on the signature page of the Agreement, and will be effective upon receipt or three business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.
10.6 Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado, without reference to its choice of laws rules. Any action or proceeding arising from or relating to this Agreement will be brought in the federal or state courts in Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought by a party to enforce the Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.
10.7 Remedies. Except as provided in Sections 7 and 8 the parties’ rights and remedies under the Agreement are cumulative. Referral Partner acknowledges that all Products contain valuable trade secrets and proprietary information of CRYPTO-ML, that any actual or threatened breach of Section 6 will constitute immediate, irreparable harm to CRYPTO-ML for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, Referral Partner agrees to waive any bond that would otherwise be required.
10.8 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.9 Severability. If any provision of the Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
10.10 Entire Agreement. This Agreement (including the attachments and exhibits hereto) constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement will not be modified except by a subsequently dated written amendment signed on behalf of CRYPTO-ML and Referral Partner by their duly authorized representatives. Once signed, any reproduction of this Agreement, or any attachment or exhibit hereto, made by reliable means (for example, photocopy or facsimile) is considered an original and all software and services ordered under this Agreement will be subject to it.