This agreement (the “Agreement”) is between Brian Garcia LIVE, LLC a Texas limited liability company located at 1401 Lavaca Street #112, Austin, TX 78701 USA (“Company”) and Mz Bick Media Inc. an Ontario incorporation located at 13-280 West Beaver Creek Rd, Unit #129 Richmond Hill, ON L4B 3Z1, Canada ("Company") including their Trademark Company BE Adventure Partners you (hereinafter, “Referral Affiliate”) (collectively known as the “Parties” and individually as the “Party”) and is effective as of the date (the “Effective Date”) that Referral Affiliate consented to the terms of this Agreement. The Parties hereby agree as follows:
WHEREAS, Referral Affiliate desires, from time-to-time, to refer to Company potential customers (the “Referred Customers”) so that the Company can derive revenue from the Referred Customers; and
WHEREAS, Company desires to acquire referrals from Referral Affiliate in consideration for the payment to Referral Affiliate of a Referral Fee (as defined below).
NOW, THEREFORE, in consideration of the mutual promises made herein, the Parties agree as follows:
1.1.Referral Affiliate shall, from time-to-time, refer to Company potential customers from which Company can potentially generate revenue.
1.2.Referral Affiliate is not permitted to use third parties (for example, “sub-affiliates” or an affiliate network”) to identify potential Referred Customers.
2. Referral Fee and Service Fee.
2.1.Company shall pay Referral Affiliate a fee (the “Referral Fee”) as follows:
2.1.1.The currently posted amount (either a fixed amount or percentage) of the amount paid by each Referred Customer for monthly membership fees and product purchases that are directly attributable to Referral Affiliate’s marketing efforts. Transactions that are directly attributable to Referral Affiliate’s marketing efforts do not necessarily include all purchases made by a Referred Customer. For example, while a Referral Affiliate may receive a Referral Fee for a Referred Customer’s monthly recurring membership, a third party may receive a Referral Fee attributable to subsequent product purchases by the same Referred Customer. Company reserves the right to change the amount from time to time.
2.1.2.Payment shall be made within 15 days after the end of each calendar month, provided that: 1) the Referral Affiliate is not in breach of this Agreement or any other agreement between Referral Affiliate and Company; and 2) the Referral Fee is $50 or more.
2.1.3.Company is not responsible for any errors, omissions, or problems regarding the Referral Fee that is reported to Company more than 7 days after payment is tendered.
2.1.4.Referral Affiliate is responsible for paying local, state, and federal taxes on any Referral Fee.
2.1.5.A Referral Fee is not due for any transaction that: occurs as a result of fraud or deception; was induced by unlawful conduct or conduct that potentially or actually causes harm to Company’s reputation or goodwill; causes any portion of the Referral Fee to be shared, directly or indirectly, with the Referred Customer (including without limitation transactions that involve a Referred Customer’s spouse, co-habitant, or business associate); or violates Company’s currently posted rules for generating Referral Fees.
2.2.Referral Affiliate shall pay a monthly fee (the “Service Fee”) if Referral Affiliate’s account becomes dormant. Referral Affiliate’s account shall be deemed dormant if Referral Affiliate does not log into Referral Affiliate’s account for four consecutive months. The Service Fee shall be either 10% of the total unclaimed Referral Fees or $25, whichever is greater.
3. Term, and Termination.
3.1.This Agreement shall remain in full force and effect until terminated by a party upon 15 days’ notice.
3.2.This Referral Affiliate shall terminate automatically and without notice if:
3.2.1.Referral Affiliate is in breach of this Agreement, including without limitation any warranty contained herein;
3.2.2.Referral Affiliate does not log into Referral Affiliate’s account during any six month period;
3.2.3.Referral Affiliate is diluting, tarnishing or blurring Company’s proprietary rights;
3.2.4.Referral Affiliate begin proceedings to challenge Company’s proprietary rights; or
3.2.5.A third party disputes Referral Affiliate’s right to use any promotional method;
3.3.Upon termination of this Agreement, Referral Affiliate shall no longer accrue Referral Fees.
3.4.The following sections shall survive termination of this agreement: §§ 4-8.
4. Confidentiality and Trade Secrets
4.1.All documents, data files, information, and other materials made available to Referral Affiliate in connection with this Agreement, including without limitation all information regarding services, Company customers, Referred Customers, marketing data, and business plans (collectively “Confidential Information”) shall be deemed to have been furnished to Referral Affiliate in confidence and shall remain the exclusive property of Company during and after the term of this Agreement. Referral Affiliate shall keep in strict confidence all Confidential Information. Referral Affiliate shall not at any time use Confidential Information for its own benefit, or disclose or permit any of its employees, agents, or representatives to disclose Confidential Information without Company’s prior written consent. Confidential Information does not include: Information already known to the recipient before disclosure; Information already known to the public, other than as a result of breach of this Agreement; Information received from a third party; Information subsequently independently developed; and Information required to be disclosed by law.
4.2.Referral Affiliate acknowledges that the identity of Referred Customer, contact information for a Referred Customer, and information about a Referred Customer’s business operations are a Company trade secret (the “Referral Affiliate Trade Secrets”). Referral Affiliate represents and warrants that it shall not use Company Trade Secrets to compete with Company, solicit Company customers, or to circumvent this Agreement.
5. Intellectual Property Rights
5.1.Referral Affiliate agrees not to adopt or use in any manner any trademarks, service marks, tradenames, or URLs that are the same or confusingly similar to, or are combined with, those of Company without prior written permission.
5.2.All proprietary rights of Company and all goodwill arising as a result of such rights, inure to the benefit of Company.
5.3.Referral Affiliate acknowledges that Referral Affiliate obtains no proprietary rights in Company’s trademarks, service marks, tradenames, URLs, copyrighted material, patents, and patent applications, and agrees not to challenge Company’s proprietary rights.
5.4.Referral Affiliate understand that all personally identifiable information, if any, provided by Referred Customers and any or all reports, results, and information created, compiled, analyzed, or derived by Company from such data is the sole and exclusive property of Company and is considered Company’s Confidential Information pursuant to this Agreement. Company in its sole discretion, shall have the right to use, market, and re-market this information without further obligation to Referral Affiliate. Referral Affiliate shall not make any use of, copy, make derivative works from, sell, transfer, lease, assign, redistribute, disclose, disseminate, or otherwise make available in any manner, such data, or any portion thereof, to any third-party.
6.1.Referral Affiliate represents and warrants that Referral Affiliate’s performance of this Agreement will comply with the requirements of all relevant legislation (including without limitation laws that apply to commercial email and telemarketing, and all guidelines promulgated by the Federal Trade Commission) in force or applicable in the United States & Canadian or in any other applicable jurisdiction, and warrants that no promotion method or material used by Referral Affiliate will render Company liable in any proceedings whatsoever.
6.2.Referral Affiliate represents and warrants that: (i) Referral Affiliate’s promotional methods do not and will not infringe a third party’s or Company’s proprietary rights; (ii) Referral Affiliate shall remain solely responsible for any and all websites owned or operated by Referral Affiliate and all promotional methods used pursuant to this Agreement; and (iii) Company is not obligated to review any of Referral Affiliate’s promotional methods, but Referral Affiliate shall fully and promptly comply with Company’s request for information and materials relating thereto.
6.3.Referral Affiliate represents and warrants that: i) All the materials Referral Affiliate uses to advertise, market, promote Company’s products and services was created without any contribution of any kind from Company, including without limitation editorial control or approval; ii) Any suggestions regarding content that Referral Affiliate receive from Company are made “as-is” and without any warranty; and iii) Referral Affiliate has had all materials reviewed by competent legal counsel and solely assumes all responsibility for the materials.
6.4.Referral Affiliate represents and warrants that all promotional means used by Referral Affiliate will not contain objectionable content (including but not limited to content that is misleading, libelous, defamatory, obscene, violent, bigoted, hate-oriented, illegal, or promoting illegal goods, services or activities), and that Referral Affiliate will not mislead others. Referral Affiliate agrees to use only ethical business practices.
6.5.Referral Affiliate represent and warrant that any personally identifiable information of Referred Customers that it transmits to Company shall be collected and transmitted in strict compliance with all applicable laws and posted privacy policies.
6.6.Referral Affiliate represents and warrants that it shall safeguard and promote the good reputation of Company and its products and services.
6.7.Referral Affiliate represents and warrants that it shall: 1) provide complete and accurate account information to Company; 2) maintain and update this information as needed to keep it current, complete, and accurate; and 3) provide Company one month notice prior to any change. Time is of the essence with respect to Referral Affiliate's obligation to provide Company accurate information.
7.1.Referral Affiliate shall defend, indemnify and hold Company harmless against all claims, suits, demands, damages, liabilities, losses, penalties, interest, settlements and judgments, costs and expenses (including attorneys’ fees) incurred, claimed, or sustained by third parties directly or indirectly as a result of (a) Referral Affiliate’s breach of or non-compliance with this Agreement, (b) Referral Affiliate’s violation of any law, or an alleged violation of law by Company, that is a direct or indirect result of Referral Affiliate’s actions or inaction; (c) Referral Affiliate’s use of any content, goods or services; (d) any claim that Company is obligated to pay tax obligations in connection with payment made to Referral Affiliate pursuant to this Agreement; and (e) any violation or alleged violation by Referral Affiliate of any rights of another, including breach of a person’s or entity’s intellectual property rights (each (a)-(e) individually is referred to hereinafter as a “Claim”). Should any Claim give rise to a duty of indemnification under this section 7, Company shall promptly notify Referral Affiliate, and Company shall be entitled, at its own expense, and upon reasonable notice to Referral Affiliate, to participate in the defense of such Claim. Participation in the defense shall not waive or reduce any of Referral Affiliate’s obligations to indemnify or hold Company harmless. Referral Affiliate shall not settle any Claim without Company’s prior written consent. Referral Affiliate also shall indemnify for any reasonable attorneys’ fees or other costs incurred by an indemnified party in investigating or enforcing this section 7. In the context of this section 7 only, the term “Company” shall include members, managers, officers, directors, employees, corporate affiliates, subsidiaries, agents, and subcontractors.
8.1.COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTY, TO THE EXTENT PERMISSIBLE BY LAW, OTHER THAN THE WARRANTIES EXPRESSED IN THIS AGREEMENT, IF ANY, AND SPECIFICALLLY DISCLAIMS ANY WARRANTIES OF MERCHANABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
8.2.COMPANY AND ITS MEMBERS, MANAGERS, OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, ATTORNEYS, LICENSORS, LICRENSEES, SUPPLIERS, PARENT ENTITIES, SISTER ENTITIES, SUBSIDIARY ENTITIES, AND/OR RELATED ENTITIES SHALL NOT BE LIABLE TO REFERAL AFFILIATE OR ANY THIRD PARTY FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, TORT, OR CONTRACT DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATED TO AND/OR ARISING FROM THE TERMS AND/OR CONDITIONS OF THIS AGREEMENT, LOST PROFITS, AND/OR LOST OPPORTUNITIES, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL LIABILITY FOR ALL CLAIMS OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMRENT SHALL BE LIMITED SOLELY TO MONEY DAMAGES AND SHALL NOT EXCEED THE AMOUNT OF REFERRAL FEES PAID TO REFERRAL AFFILIATE DURING THE FIRST THREE MONTHS OF THIS AGREEMENT.
8.3.Neither party shall be liable for, and each party is excused from, any failure to perform or delay in the performance of its obligations under this Agreement due to causes beyond its control. No failure of either party to pursue any remedy resulting from a breach of this Agreement by the other party shall be construed as a waiver of that breach, nor as a waiver of any subsequent or other breach unless such waiver is in signed and in writing.
8.4.In the event that any provision of this Agreement shall be invalid, illegal or unenforceable in any respect, such a provision shall be considered separate and severable from the remaining provisions of this Agreement, and the validity, legality or enforceability of any of the remaining provisions of this Agreement shall not be affected or impaired by such provision in any way.
8.5.The Parties agree and acknowledge that the relationship of the Parties is in the nature of independent contractors. This Agreement shall not be deemed to create a partnership or joint venture and neither Party is the other’s agent, partner, employee, or representative.
8.6.This Agreement shall be construed in accordance with the laws of the state of Texas & province of Ontario regardless of Texas’s/Ontario's choice of laws provisions. Any and all disputes arising from and/or relating to this Agreement shall be brought before a court of competent jurisdiction in the State of Texas, County of Travis, or the Province of Ontario, County of York.
8.7.This Agreement constitutes the entire understanding and agreement between the parties in relation to the subject matter hereof and supersedes all prior discussions, agreements and representations (excluding any and all non-disclosure and/or confidentiality agreements, if any) concerning the subject matter hereof, whether oral or written and whether or not executed by Company or Referral Affiliate. Unless otherwise provided in this Agreement, no modification, amendment or other change may be made to this Agreement or any part thereof unless reduced to writing and executed by authorized representatives of both parties.
8.8.Neither party may assign this Agreement without the prior express written permission of the other party. Notwithstanding the foregoing, Referral Affiliate’s consent shall not be required for assignment or transfer made by Company (1) due to operation of law, or (2) to an entity that acquires substantially all of Company’s stock, assets or business, or (3) to a related entity (e.g. parent or subsidiary of parent).
This referral agreement was last updated on Sept 21/ 2017.