REFERRAL AGREEMENT
This REFERRAL AGREEMENT (the “Agreement”) is effective upon approval, (the “Effective Date”) by and between Referrer and Ewing Acquisitions LLC, a Colorado limited liability company (d/b/a “Ice Barrel,” herein defined as the Company):
1. REFERRAL. Company is in the business of manufacturing and selling a product called the Ice Barrel (the “Product”). Referrer offers online marketing services via social media, websites, email lists, and other online venues (the “Services”). In the course of undertaking such Services, Referrer may refer prospective purchasers (“Leads”) to Company.
2. COMPENSATION AND PAYMENT TERMS. Company shall compensate Referrer a one-time fee of 15% for each Product purchase made by a Lead that has been referred to the Company by the Referrer (the “Referral Fee”). The following payment terms shall apply:
i. Company shall not be obligated to pay a Referral Fee for any purchase by a Lead that subsequently results in a Product return or chargeback.
ii. Company shall only be obligated to pay the Referral Fee where the purchase was made within sixty (60) calendar days of Client’s receipt of the Lead from the Referrer.
iii. Leads must be referred to the Company via a trackable URL, widget, or promo code, which Company will provide to Referrer following the execution of this Agreement. Company shall not be obligated to pay a Referral Fee for any purchase made by a Lead that cannot be tracked and credited to the Referrer.
iv. Company shall only be obligated to pay a single Referral Fee to one Referrer per Product purchased. To the extent a Lead who purchases a Product is directed to the Company’s website from multiple sources, Company shall pay the Referral Fee for such purchase on a “last click” attribution basis such that credit for the Purchase shall go the “last click” that brought such Lead to the Company’s website.
v. Company shall pay Referrer within 60 days of receiving full payment from a Lead and shall pay Referrer on a monthly basis.
3. TERM AND TERMINATION. This Agreement shall commence on the Effective Date and continue for one (1) year. This Agreement shall automatically renew for another one (1) year term, unless either party provides notice to the other of its intent to terminate this agreement not less than one (1) month before the end of the then current term.
4. OWNERSHIP OF INTELLECTUAL PROPERTY. Referrer will retain all right and title to any and all videos, photographs, text and/or all works of similar nature produced, developed, or created by Referrer for this Agreement (the “Content”) including, but not limited to, intellectual property rights therein, other than Company’s logos, trademarks or trade names (whether registered or not) or any other information that identifies, or is proprietary to, Company. Notwithstanding the foregoing, Referrer grants to Company a limited, non-exclusive, royalty free, right and license to feature Content generated by Referrer (including influencer’s name and likeness) on Company’s owned social media platforms and websites. If the Services requires the use of Company’s logo, trademark, or trade name or any other information that identifies, or is proprietary to, Company, Referrer must receive written consent from Client prior to such use. Upon termination of this Agreement, Referrer shall, within three (3) days after termination, cease using Company’s logos, trademarks, and trade names.
5. CONFIDENTIALITY. During the course of Referrer’s performance of Services for Company, Referrer will receive, have access to and create documents, records and information of a confidential and proprietary nature to Company and customers of Company. Referrer acknowledges and agrees that such information is an asset of Company or its clients, is not generally known to the trade, is of a confidential nature and, to preserve the goodwill of Company and its clients must be kept strictly confidential and used only in the performance of Referrer’s duties under this Agreement. Referrer agrees that he/she will not use, disclose, communicate, copy or permit the use or disclosure of any such information to any third party in any manner whatsoever except to the existing employees of Company or as otherwise directed by Company in the course of Referrer’s performance of services under this Agreement, and thereafter only with the written permission of Company. Upon termination of this Agreement or upon the request of Company, Referrer will return to Company all of the confidential information, and all copies or reproductions thereof, which are in Referrer’s possession or control.
6. INDEMNIFICATION. Referrer shall defend, indemnify and hold Company harmless from and against all third party claims, suits, damages, losses and liabilities, including reasonable legal fees and expenses and any fines or penalties assessed by any regulatory agency, that are attributable to or arise from: (i) Referrer’s breach of any material obligation, representation or warranty in this Agreement; (ii) the Referrer’s Services; and (iii) Referrer’s infringement of any intellectual property rights contracts rights or tort rights (including the right of publicity or right of privacy) of any third party. Referrer agrees to promptly pay and fully satisfy any and all claims, judgments or expenses, including, without limitation, costs of settlement and attorneys’ fees incurred or sustained, or reasonably likely to be incurred or sustained by Company as a result of any claims of the types described in this Section.
7. MATERIAL DISCLOSURES AND COMPLIANCE WITH FTC GUIDELINES. When publishing posts/statuses about Company’s products or services, Referrer must clearly disclose his/her “material connection” with Company, including the fact that Referrer was given any consideration, was provided with certain experiences or is being paid for a particular service. The above disclosure should be clear and prominent and made in close proximity to any statements that Referrer makes about Company or Company’s products. Please note that this disclosure is required regardless of any space limitations of the medium (e.g. Twitter), where the disclosure can be made via Hashtags, e.g. #sponsored. Referrer’s statements should always reflect Referrer’s honest and truthful opinions and actual experiences. Referrer should only make factual statements about Company or Company’s products which Referrer knows for certain are true and can be verified. REFERRER WILL NOT MARKET OR ASSOCIATE THE PRODUCT OR COMPANY ON ANY WEBSITE THAT CONTAINS OR LINKS TO A WEBSITE OR OTHER DESTINATION THAT CONTAINS CONTENT THAT IS SEXUAL, OFFENSIVE, DECEPTIVE OR ILLEGAL IN NATURE OR THAT IN ANY WAY PROMOTES OR ENCOURAGES HATRED, VIOLENCE, DISCRIMINATION OR ILLEGAL ACTIVITIES.
8. INDEPENDENT CONTRACTOR. Referrer is retained as an independent contractor of Company. Referrer acknowledges and agrees that (i) Referrer is solely responsible for the manner and form by which Referrer performs under this Agreement, and (ii) Referrer is a self-employed individual, who performs services similar to the services for various entities and individuals other than Company. Referrer is responsible for the withholding and payment of all taxes and other assessments arising out of Referrer’s performance of services, and neither Referrer nor any of Referrer’s employees or independent clients shall be entitled to participate in any employee benefit plans of Company.
9. We do not allow PPC (Pay-Per-Click) bidding on this term by our affiliates.
10. MISCELLANEOUS. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. No changes or modifications or waivers to this Agreement will be effective unless in writing and signed by both parties. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement shall be governed by and construed in accordance with the laws of the state of New York without regard to the conflicts of laws provisions thereof. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in New York County, New York, and each party consents to the jurisdiction thereof. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Headings herein are for convenience of reference only and shall in no way affect interpretation of the Agreement. This Agreement constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter described herein.
