AFFILIATE TERMS OF SERVICE
THESE AFFILIATE TERMS OF SERVICE ("AGREEMENT") IS ENTERED INTO BY AND BETWEEN DEALMACHINE L.L.C., A WYOMING LIMITED LIABILITY COMPANY ("DEALMACHINE") AND the INDIVIDUAL or entity AGREEING TO BE BOUND BY this Agreement ("AFFILIATE"). BY ACCEPTING THIS AGREEMENT, EITHER BY CHECKING A BOX INDICATING AFFILIATE'S ACCEPTANCE OF THIS AGREEMENT, PERFORMING SOME OTHER FORM OF ASSENT, OR BY EXECUTING THIS AGREEMENT OR ANY DOCUMENT THAT INCORPORATES THIS AGREEMENT AND OF WHICH THIS AGREEMENT IS A PART, AFFILIATE AGREES TO THE TERMS OF THIS AGREEMENT. AFFILIATE REPRESENTS TO DEALMACHINE THAT AFFILIATE HAS THE AUTHORITY TO BIND AFFILIATE TO THIS AGREEMENT.
This Agreement is effective as of the date Affiliate accepts this Agreement (the "Effective Date").
WHEREAS, DealMachine is in the business of (a) providing software to DealMachine's customers, which such software provides users with real estate data and information and allows users to identify potential real estate opportunities, and (b) providing other services (the services described in clauses (a) and (b) above shall, collectively, be referred to as the "Services");
WHEREAS, Affiliate is in the business of, among other things, business development; and
NOW, THEREFORE, in consideration of the promises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Affiliate and DealMachine agree as follows:
1. Referrals. Affiliate shall (a) promote the Services to Affiliate's network of followers and connections, and (b) refer Affiliate's clients, customers and other contacts to DealMachine (collectively, the persons described in clauses (a) and (b) above shall be referred to as "Referrals") pursuant to the terms of this Agreement. DealMachine shall only be required to pay Affiliate a Referral Fee (as defined in Section 2(a)) for those Referrals (i) that at the time of such referral the Referral is not receiving any Services and has never received any services from DealMachine; (ii) with whom DealMachine enters into a contractual relationship; (iii) to which DealMachine provides Services; (iv) from which DealMachine actually receives payment in exchange for the provision of Services; and (v) that use an Affiliate-specific link or code, provided by DealMachine to Affiliate, to enter into a contractual relationship with DealMachine. Notwithstanding anything to the contrary herein, DealMachine shall have no obligation to provide Services to any Referral and the election to enter into any contractual relationship with, and provide the Services to, any Referral shall be made by DealMachine in its sole and absolute discretion.
2. Fees and Payment.
(a) Value Point-Based System. For each Referral satisfying all of the conditions set forth in Section 1(i) through (v), the Referral is assigned a point value as follows: (i) 1 point for Referrals in the past 90 days, (ii) 0.5 points for Referrals in the past 91-180 days, and (iii) 0.25 points for Referrals in the past 181-365 days.
(b) Partner Tiers. On the 1st business day of each month, each Affiliate will be assigned to a partner tier (Silver, Gold, or Diamond Tier, collectively referred to as "Partner Tiers") based on the combined point value of the Affiliate's qualifying Referrals. Each Partner Tier corresponds with tier percentages for Basic, Professional, or Enterprise-level Referrals (the "Tier Percentages"), which are used to calculate payment for Referrals as set forth in Section 2(c). The Partner Tiers and Tier Percentages are as follows: (i) Silver Tier, 0-99 points, Tier Percentages: 25% for Basic or Professional, 15% for Enterprise; (ii) Gold Tier, 100-499 points, Tier Percentages: 40% for Basic or Professional, 15% for Enterprise; and (iii) Diamond Tier, 500+ points, Tier Percentages: 50% for Basic or Professional, 15% for Enterprise. Once assigned to a Partner Tier, an Affiliate will not be downgraded to a lower Partner Tier (i.e. from Diamond to Gold, from Diamond to Silver, or from Gold to Silver) until their combined point value remains below the required point level for the higher Partner Tier for two (2) consecutive calendar months.
(c) Payment for Referrals. For each Referral satisfying all of the conditions set forth in Section 1(i) through (v), DealMachine shall pay to Affiliate an amount equal to the Affiliate's assigned Tier twenty-five Ppercentages (25%), multiplied by the Monthly Plan Fees (as defined below) that DealMachine actually receives from such Referral for the provision of Services to such Referral ("Referral Fee"). The Referral Fee for each Referral satisfying all of the conditions set forth in Section 1(i) through (v) on or after January 1, 2020 shall be an amount equal to fifty percent (50%). As used herein, the term "Monthly Plan Fees" shall mean the monthly subscription fee charged by DealMachine to Referral for basic access to the Services. The term "Monthly Plan Fees" shall expressly not include any add-ons or additional products or services other than basic access to the Services, as determined by DealMachine in its discretion.
(d) Method and Timing of Payment. DealMachine shall pay any accrued Referral Fee to Affiliate no later than thirty (30) days after the date on which DealMachine receives payment from any Referral for the relevant Monthly Plan Fees. For the avoidance of any doubt, DealMachine shall have no obligation to pay Affiliate any Referral Fee in the event the relevant Referral fails to pay Monthly Plan Fees to DealMachine.
(e) Termination of Payment Obligation. Notwithstanding anything to the contrary herein, any obligation of DealMachine to pay a Referral Fee to Affiliate pursuant to any Referral shall terminate upon the earlier of the following to occur: (i) the date upon which the contractual relationship by and between DealMachine and such Referral terminates or expires; (ii) termination of this Agreement pursuant to Sections 3(b)(i) or (ii); or (iii) termination of this Agreement by DealMachine for Cause (as defined in Section 3(b)).
3. Term; Termination.
(a) Term. The initial term of this Agreement (the "Initial Term") shall commence on the Effective Date and shall continue for a period of twelve (12) months thereafter, unless otherwise terminated in accordance with the terms set forth herein. Thereafter, unless otherwise terminated in accordance with the terms set forth herein, this Agreement shall continue for successive one (1) month terms. The Initial Term and any subsequent term shall collectively be referred to as the "Term". Each party's obligations under this Agreement shall continue for such periods of time as indicated herein so long as the applicable Referral was made during the Term.
(b) Termination. Without limiting any right or remedies under this Agreement or at law, either party may terminate this Agreement (i) immediately if the other party becomes insolvent or becomes the subject of a bankruptcy petition or a receiver or trustee is appointed for the majority of its assets; (ii) the other party breaches this Agreement and, following fifteen (15) days' written notice, fails to cure such breach; or (iii) for any or no reason upon no less than thirty (30) days' written notice to the other party. In addition to the foregoing, DealMachine shall have the right to terminate this Agreement immediately for Cause (as defined below). The term "Cause" shall mean Affiliate or any member, manager, director, or officer of Affiliate (as applicable) committing fraud, embezzlement, theft, or any felony conviction. Notwithstanding anything to the contrary herein, this Agreement shall automatically terminate on the date on which no Referral has a contractual relationship with DealMachine.
(c) Effect of Termination. DealMachine shall pay Affiliate for all amounts owed under this Agreement up to the effective date of termination, except that DealMachine's payment obligations for Referrals made during the Term and for which the conditions in Section 1(i) through (v) are met shall continue as provided for in Section 2(c).
4. Non-Exclusivity. DealMachine shall have the right to enter into agreements similar to this Agreement with any third party, which such third party may include any competitor of Affiliate.
5. Non-Solicitation. During the Term and for a period of two (2) years after any termination of this Agreement, Affiliate shall not directly or indirectly, on Affiliate's own behalf or in the service or on behalf of others, in any capacity: (a) solicit the business or patronage of any DealMachine client or customer (including, but not limited to, Referrals) for itself or for any other person or entity in competition with the Services; (b) divert, entice, or otherwise take away from DealMachine the business or patronage of any client or customer of DealMachine (including, but not limited to Referrals), or attempt to do so; or (c) solicit or induce any customer or client of DealMachine (including, but not limited to, Referrals) to terminate or reduce its relationship with DealMachine.
6. Independent Contractor. DealMachine and Affiliate agree that each party shall perform its duties under this Agreement as an independent contractor. Neither party to this Agreement is an agent, representative or employee of the other party. Neither party will have any right, power or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or otherwise bind the other party except as specifically provided herein. This Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or impose any liability attributable to such a relationship.
7. Confidentiality. Affiliate shall hold DealMachine's Proprietary or Confidential Information (as defined below) in strict confidence. The sole purpose of any disclosure to Affiliate of DealMachine's Proprietary or Confidential Information is to allow Affiliate to perform Affiliate's obligations under this Agreement. Affiliate shall not make any use of any Proprietary or Confidential Information of DealMachine, except for the purposes of performing Affiliate's obligations hereunder. Affiliate agrees not to disclose any Proprietary or Confidential Information to any third party without DealMachine's prior written consent. DealMachine's Proprietary or Confidential Information shall remain the sole and exclusive property of DealMachine. The parties hereby agree and acknowledge that in the event of use or disclosure by Affiliate other than as specifically provided for in this Agreement, DealMachine may be entitled to equitable relief and/or other relief as specified in this Agreement or is otherwise available at law or in equity. Within ten (10) days after the termination or expiration of this Agreement, upon request, Affiliate shall return to DealMachine all Proprietary or Confidential Information of DealMachine (and any copies thereof) in Affiliate's possession or, with the express request and approval of DealMachine, destroy all such Proprietary or Confidential Information as requested and authorized pursuant to this section. For the purposes of this Agreement, the term "Proprietary or Confidential Information" shall include, but is not limited to, written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, computer retained information, source code, operational information, technical information, business information, notes, customer lists, or financial information. Proprietary or Confidential Information shall not include any information which: (i) is or becomes generally known to the public by any means other than a breach of the obligations of the party receiving such information; (ii) was previously known to the party receiving such information or rightly received by the receiving party from a third party; (iii) is independently developed by the receiving party; or (iv) is subject to disclosure under court order or other lawful process.
8. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY, FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT. DEALMACHINE'S TOTAL LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY OF THE CLAIM, SHALL NOT EXCEED THE REFERRAL FEE(S) PAID BY DEALMACHINE TO AFFILIATE UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO EVENTS GIVING RISE TO THE CLAIM.
9. Choice of Law. This Agreement shall be governed and construed in accordance with the laws of the State of Indiana without regard to conflicts of laws principles.
10. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with regards to the subject matter hereof. No other agreements, representations, or warranties have been made by either Party to the other with respect to the subject matter of this Agreement, except as referenced in this Agreement. This Agreement may be amended only by a written agreement signed by both Parties.
11. Disputes. DealMachine and Affiliate agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. If any negotiation required by this Section 11 fails, then at the written request of either party, any controversy, dispute or claim arising out of or relating to this Agreement or any breach hereof shall be finally settled by arbitration by a single arbitrator in Indianapolis, Indiana pursuant to the Commercial Arbitration Rules then in effect of the American Arbitration Association. The award made in such arbitration shall be entered in any court having jurisdiction thereof solely for the purpose of applying for an order confirming, modifying, correcting or vacating the award. Except to the extent required by law, no party, arbitrator, representative, counsel or witness shall disclose or confirm to any person not present at the arbitration hearings any information about the hearings, including the names of the parties and arbitrators, the nature and amount of the claims, the financial condition of any party, the expected date of hearing or the award made. Each party shall bear such party's own costs and expenses of such arbitration, except that one-half (1/2) of the arbitrator's fees shall be paid by each party.
12. Severability. In the event that a court finds any provision of this Agreement invalid and/or unenforceable, the Parties agree that the remaining provisions shall remain valid and in full force.
13. Waiver. No express or implied waiver by either party of any breach of any term, condition, or obligation set forth in this Agreement by the other party shall be construed as a waiver of any subsequent breach of that or any other term, condition, or obligation.
14. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall constitute an original but all together of which shall constitute but a single document.
15. Notice. Any written notice or demand required by this Agreement shall be sent by registered or certified mail (return receipt requested), personal delivery, overnight commercial carrier, electronic mail, or other guaranteed delivery to the other Party at the address provided herein. The notice shall be effective (a) as of the date of delivery if the notice is sent by personal delivery, overnight commercial courier, electronic mail or other guaranteed delivery, and (b) as of five (5) days after the date of posting if the notice is transmitted by registered or certified mail.
If to DealMachine:
735 Shelby Street, Suite 105
Indianapolis, Indiana 46203
Attn: David Lecko
If to Affiliate:
16. Assignment. Affiliate may not assign either this Agreement or any of its rights or obligations hereunder without the prior written consent of DealMachine. DealMachine shall have the right to freely assign either this Agreement or any of its rights, interests, or obligations hereunder. Subject to the preceding sentences, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns.
17. Headings. The headings used in this Agreement are used for convenience and shall not be considered in construing the terms of this Agreement.