Referral Relationship Agreement
This REFERRAL AGREEMENT (the “Agreement”), made and entered into by and between Optimization Tutor, Inc. dba: OptimizationTutor.com, (“OptimizationTutor.com” “us” “our” or “we”), a Washington Profit Company, with its principal place of business located at 1023 S Salish Ct, Spokane WA 99224, and (“Referrer” or “you”). This legally binding agreement contains all of the terms and conditions that apply to your participation in OptimizationTutor.com’s Referral Affiliate Program (“Referral Program”).
WHEREAS this Agreement contains the terms and conditions that apply to your participation as a Referrer in OptimizationTutor.com’s Referral Program; and
WHEREAS Referrer acknowledges that it may participate in the Referral Program only under the terms and conditions set forth below, and that OptimizationTutor.com will, in its sole discretion, determine whether or not to accept Referrer into Referral Program.
NOW THEREFORE, in consideration of the mutual covenants and promises contained in this Agreement, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows.
1. Definitions. The above recitals are incorporated hereto by reference.
“Advertising” or “Advertisements” means any and all banner or box-style advertisements, pop-up placements, text links or other similar solicitations through the Internet or otherwise that promote OptimizationTutor.com Products or Services and that may contain a link to one or more OptimizationTutor.com sites.
“Site” or “App” or “Display Area” means any place you display an Advertisement and/or Link which includes but not limited to, web apps, gadgets, widgets, quizzes, direct mail, banners, video, audio, stickers, paper, flyers, phone solicitations, email, ad platforms, etc. and any other form or type of medium used to communicate in public or private Display Area or setting.
“Referrer” means any person or entity that has submitted an interest to OptimizationTutor.com requesting to become a Referrer and has been accepted for participation in the OptimizationTutor.com’s Referral Program in accordance with the terms of this Agreement.
“Intellectual Property Rights” means all rights in and to trade secrets, patents, copyrights, trademarks, as well as any similar rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to any of the foregoing.
“Link” means an embedded graphic, icon or text containing a unique hypertext pointer to one or more URL addresses for OptimizationTutor.com and/or sites that is embedded in an Advertisement and that identifies consumers that become Customers/Clients via the Advertisement.
“Qualified Lead” means a lead that was tracked and received by OptimizationTutor.com, which includes all of the necessary lead data, and also matches the buying criteria set by a lead buyer in the OptimizationTutor.com Network and has resulted in a commissionable payout.
2. Term. The term of this Agreement (“Term”) will begin upon your acceptance by OptimizationTutor.com into our Referral Program and shall end when terminated by either party.
3. Termination. Either party may terminate this Agreement immediately by giving notice to the other party. Referrer agrees and acknowledges that if Referrer breaches any provision of this Agreement that OptimizationTutor.com may immediately terminate Referrer from Referral Program. Upon termination of this Agreement, Referrer must immediately cease using any/all of OptimizationTutor.com’s Advertisements.
4. Acceptance to the Referral Program. If you are accepted to the Referral Program, we will make available to you textual and/or graphic links (collectively, “Links”), that you may display on your website(s) (“sites”) subject to the terms and conditions of this Agreement. The Links will serve to establish a link from your sites to ours.
5. Payment Terms and Conditions. OptimizationTutor.com agrees to pay you a commission in the amount shown in your Referrer Login Dashboard per new customer that you refer, resulting in a Qualified Lead for us. Referrers must be made via our tracking links or with us personally for the lead to qualify as otherwise the Referrer is undocumented.
Payment will be issued weekly for the previous week’s leads closed, one (1) week removed, provided that your account has reached a minimum of $100.00. Accounts with a balance of less than $100.00, will automatically roll over to the next payment or otherwise will be paid on a quarterly basis. Weekly leads are based on a calendar schedule beginning on Monday every week and end on Sunday of every week.
6. Referrer’s Responsibilities. You agree to accept sole responsibility for the development, operation, and maintenance of your sites, apps, email systems, etc. and for all content that appears on your them and you MUST ensure that all materials posted on your sites are not illegal and do not infringe on the rights of any person or entity of any kind including, but not limited to, any/all third party intellectual property rights. You further agree that your sites do not copy or resemble the look and feel of our sites, or create the impression that your sites are our sites or a part of our sites. You agree to submit to us all of the URLs for all sites you plan to use to promote our sites.
7. Limited License. Each party owns and shall retain all rights, title and interest in its names, logos, trademarks, service marks, copyrights and proprietary technology. This includes, but is not limited to, those names, logos, trademarks, service marks, copyrights and proprietary technology currently used or which may be developed and/or used by it in the future. OptimizationTutor.com shall own and retain all rights, title and interest in all names, addresses and other identifying information of customers visiting our sites (“Customer Information”) which is collected by us. This includes, but is not limited to, customers who access our sites through your Links. You fully understand and agree that you shall have no right to access or use any such Customer Information. OptimizationTutor.com grants you a revocable, non-exclusive license to use, reproduce and transmit the Links provided by us. Any benefits resulting from your use of OptimizationTutor.com’s name, logos or trademarks, as incorporated into the Links, are solely for the benefit of OptimizationTutor.com and will not create any right, title or interest for you. You may use only the Links that are provided by us to you. You shall not use the Links in connection with any activity that disparages us or that damages our reputation in any manner whatsoever. You are strictly prohibited from creating an impression that there is an association or affiliation between us and you beyond the arrangement outlined in this Agreement. Referrer shall immediately cease using the Links upon any termination or expiration of this Agreement.
8. Modifications. OptimizationTutor.com may modify any of the terms and conditions of this Agreement at any time and without prior notice to you. If the modifications are unacceptable to you, your only recourse is to terminate this Agreement.
9. Disclaimers. OptimizationTutor.com makes no warranties whatsoever including, without limitation, any warranties of fitness, merchantability, non infringement, or any implied warranties arising out of course of performance, dealing or trade usage and makes no representation that the operation of its sites will be uninterrupted or error-free and will not be liable for any consequences resulting from any interruptions or errors. OptimizationTutor.com disclaims all liability for all materials or content on Referrer sites.
10. Confidentiality. Each party agrees not to disclose the other party’s Confidential Information and to protect its confidentiality using at least the same degree of care that party uses to protect its own Confidential Information, which shall under no circumstances be less than reasonable care, including not disclosing it to a third party unless there is a “need to know,” and a written obligation by the third party to maintain the confidentiality. If a party receives an order from a court or other governmental body that requires disclosure of the other party’s Confidential Information then the party receiving the order shall notify the other party of the order and shall assist the other party in seeking an appropriate protective order in advance of making any such disclosure. The obligation to protect Confidential Information shall survive the expiration or termination of this Agreement.
11. Indemnification. Each party agrees to defend, indemnify and hold harmless the other party and their respective officers, directors and employees from and against any liabilities, damages, losses, costs, expenses or settlement fees, including reasonable attorneys’ fees and costs, arising out of any claim, suit, proceeding, demand or action brought by a third party against the other party as a result of the indemnifying party’s alleged breach of its representations, warranties or covenants provided in this Agreement or by gross negligence, bad faith or willful misconduct. Any party seeking indemnification under this Section will promptly notify the indemnifying party in writing and provide the indemnifying party with reasonable information, assistance and cooperation in defending the lawsuit or proceeding at the indemnifying party’s expense.
12. Equitable Relief. Referrer agrees that money damages would not be a sufficient remedy for a breach of the terms and obligations of this Agreement. Accordingly, in addition to all other remedies OptimizationTutor.com may have, OptimizationTutor.com shall be entitled to specific performance and injunctive or other equitable relief as a remedy for any breach of the confidentiality and other obligations of this Agreement. The parties agree to waive any requirement for a bond in connection with any injunctive or other equitable relief.
13. Amendments; Waivers. This Agreement may not be amended or modified except by an agreement in writing signed by each of the Parties. The waiver or failure of either Party to exercise any right provided for in this Agreement will not be deemed a waiver of any future rights under this Agreement.
14. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES WILL OptimizationTutor.com BE LIABLE TO Referrer FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE FORESEEABLE OR OptimizationTutor.com HAS BEEN ADVISED OR HAS CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM OptimizationTutor.com’S PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT OR THE OPERATION OF OptimizationTutor.com’S BUSINESS; AND OptimizationTutor.com’S AGGREGATE LIABILITY TO THE Referrer ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, INDEMNITY OR OTHERWISE), WILL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES THAT ARE OWED TO Referrer BY OptimizationTutor.com UNDER THE TERMS OF THIS AGREEMENT.
15. Governing Law; Jurisdiction. This Agreement is to be construed in accordance with and governed by the internal laws of the State of Washington, without giving effect to any choice of law rule. Client agrees that courts located in Spokane, Washington, shall have exclusive jurisdiction and venue of any disputes arising from this Agreement. Parties warrant that they will conduct their business in accordance with all applicable State and Federal laws.
16. Recovery of Fees by Prevailing Party. If any legal action, including, without limitation an action for arbitration or equitable relief, is brought by one Party against the other Party relating to this Agreement or the breach or alleged breach hereof, the prevailing Party in any final judgment or arbitration award, or the non-dismissing Party in the event of a voluntary dismissal by the other Party instituting the action, will be entitled to reimbursement from the other Party for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
17. Force Majeure. Neither Party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including but not limited to acts of God, government restrictions, wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected including mechanical, electronic or communications failure.
18. Severability. If the application of any provision of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby, and such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without any further action by the parties to the extent necessary to make such provisions valid and enforceable.
19. Entire Agreement. The provisions of this Agreement constitute the entire agreement between the parties and shall supersede all prior oral or written agreements or understandings relating to this subject matter.
20. No Joint Venture. Nothing contained in this Agreement shall create or be construed to create any partnership, joint venture, agency, franchise, employment or fiduciary relationship between the parties.