PLEASE READ THE FOLLOWING ELEVATION AFFILIATE REFERRAL AGREEMENT CAREFULLY. BY CLICKING THE “I AGREE” BOX IN THE AFFILATE FORM (go.elevationweb.org/affiliate-program/) AND SUBMITTING THE AFFILIATE FORM BY CLICKING THE “SUBMIT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE BOX AND SUBMIT THE AFFILIATE FORM.
ELEVATION AFFILIATE REFERRAL AGREEMENT
This Elevation Affiliate Referral Agreement (“Agreement”) is made and entered into by and between Elevation and Affiliate (each, as defined below). This Agreement shall become binding upon Approval (as defined below). Elevation and Affiliate are sometimes referred to as a “party” and together as the “parties”.
As used in this Agreement the following terms shall have the meanings set for the below:
“Affiliate” means the person or company (including Company Name and other information) detailed in the Affiliate Form submitted to Elevation.
“Affiliate Form” means the form provided by Elevation via its website, a link or in the manner as determined by Elevation.
“Approval” has the meaning given to it in Section 1 hereof.
“Elevation” means Elevation Group, LLC, a Florida limited liability company, with an office located at 100 M Street, Suite 600, Washington, DC 20003.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- Approval. The legal effectiveness of this Agreement is subject to Elevation’s approval in writing (via mail, fax or e-mail) of Affiliate’s application for participation in the Elevation Referral Program (“Approval“), and this Agreement shall commence on the date of such Approval (“Effective Date“). Elevation may reject or decline to accept Affiliate’s application for any or no reason at its sole discretion. Elevation may take screening measures of any sort in connection with Affiliate’s application. If Elevation approves Affiliate’s application, Affiliate may refer sales leads to Elevation during the term and in accordance with all terms and conditions of this Agreement, to enable Elevation to solicit orders for Elevation products and/or services (“Services“).
- Term and Termination.
a. Term. The term of this Agreement shall be one (1) year from the Effective Date and shall automatically renew for successive one-year periods unless either party provides written notice to the other party within thirty (30) days prior to the expiration of initial term or any renewal term of its intent not to renew.
b. Termination for Convenience. Either party may terminate this Agreement for convenience by providing the other party with ten (10) days’ prior written notice of termination.
c. Termination for Cause. Either party may immediately terminate this Agreement upon the occurrence of any of the following events: (a) a material breach by the other party, which the other party fails to cure within thirty (30) days following receipt of a written notice of such breach, (b) if the other party becomes insolvent, makes a general assignment for the benefit of creditors, applies for, consents to, or acquiesces in the appointment of a trustee, receiver or other custodian, whether voluntary or otherwise, or (c) if there is instituted by or against the other party any proceedings under any bankruptcy law, or under any other law for the relief of debtors now or hereafter existing and such proceeding is not dismissed within thirty (30) days thereafter.
d.Effect Upon Termination. Section 3, 4, 7, 8, 9, 10, and 11 shall survive the termination of this Agreement. Upon termination of this Agreement for any reason, Affiliate shall immediately cease the use of all Elevation brochures, literature, documentation and other materials within Affiliate’s control. Except as set forth in Section 6(d) hereof, Affiliate shall have no rights or claims against Elevation in connection with termination, expiration or non-renewal of this Agreement; in particular, without any limitation, Affiliate hereby irrevocably waives any rights to additional commissions and/or compensation to the maximum extent permissible under applicable law.
- Unauthorized Representations or Warranties. Affiliate’s activities under this Agreement shall be limited as follows:
a. Affiliate shall conduct its business in its own name and in accordance with the highest business standards, acting dutifully, in good faith and in compliance with all applicable laws, and not perform any act which would or might reflect adversely upon the Services or the business or integrity of Elevation.
b. Affiliate shall not be, or purport to be, authorized to legally represent Elevation or to conduct negotiations on behalf of Elevation. Affiliate shall not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of Elevation or register this Agreement nor shall Elevation be liable for any acts, omissions to act, contracts, commitments, promises or representations made by Affiliate.
c. Affiliate shall refrain from making any representations, warranties or other statements about Services, prices or business practices, except that Affiliate shall forward to sales leads unmodified marketing materials provided by Elevation.
d. Affiliate shall refrain from making any representations, warranties or other statements that are deceptive, misleading or otherwise inconsistent with the literature distributed Elevation or its suppliers with respect thereto.
- No License. Affiliate acknowledges and agrees that no license is granted under this Agreement to use or access any Services, any of Elevation’s proprietary technologies, or any data, information or other content provided. As between the parties, Elevation retains all right, title and interest in and to the Services and all technology, data, information or other content embodied therein or provided thereby, as well as any intellectual property rights or similar rights in connection therewith, and Affiliate acknowledges that Affiliate neither owns nor acquires any rights in or to the Services.
a. Submission of Leads. Affiliate shall identify each potential sales lead (“Proposed Lead”) and relevant commercial conditions relating to such Proposed Lead in an Elevation Lead Form (“Lead Form”), a standard form generated by Elevation (and available online via a link provided to Affiliate by Elevation), or via some other method at Elevation’s option. At Elevation’s request, Affiliate shall (i) supply any additional information reasonably requested by Elevation, (ii) discuss each completed Lead Form in detail with Elevation, and (iii) assist Elevation in making contact with the Proposed Lead by arranging an introduction, meeting, conference call or other means of communication with the Proposed Lead.
b. Acceptance of Leads. Within a reasonable period of time following Affiliate’s submission of a Lead Form, Elevation shall review the Lead Form to determine whether to accept the Proposed Lead as commissionable under Section 6 below or reject the Proposed Lead pursuant to this Section 5(b). Elevation will be under no obligation to accept any Lead Form submitted by Affiliate and may reject or decline to accept Lead Forms for any or no reason at its sole discretion, including, without limitation, because:
- The Proposed Lead was an existing customer of Elevation at the time of the submission of the Lead Form;
- Elevation was already involved in preliminary or advanced discussions relating to the provision of Services to the Proposed Lead at the time of the submission of the Lead Form; or
- A Lead Form (or similar document) has previously been submitted to Elevation by Affiliate or any third party with respect to the Proposed Lead.
a. Commissionable Leads. A Proposed Lead qualifies as commissionable (“Commissionable Lead”) only if:
1. Affiliate has submitted a Lead Form for the Proposed Lead in accordance with Section 5(a);
2. Elevation has accepted the Proposed Lead as a Commissionable Lead (e.g., not rejected the Proposed Lead as set forth in Section 5(b), or otherwise);
3. The Proposed Lead has executed a Master Services Agreement with Elevation within six (6) months after Affiliate’s submission of the applicable Lead Form; and
4. Elevation has received payment from the Proposed Lead under its Master Services Agreement.
b. Commissions and Payment. Subject to Affiliate’s compliance with all terms and conditions of this Agreement, Elevation will pay Affiliate commissions equal to 5% of the amount paid to Elevation by the Commissionable Lead under the first year of its Master Services Agreement. Commission payments (less any applicable withholding taxes, subsequently credited charges, write-offs, refunds, charge backs, or other levies) will be due to Affiliate thirty (30) days after the date on which Elevation receives a down payment from the Commissionable Lead.
c. Modifications. Elevation may modify the Lead Form submission process and the amounts and conditions relating to commissions upon ten (10) days written notice. Such changes will only affect the Lead Form submitted after such ten (10) day period unless otherwise agreed to in writing by the parties.
d. Commissions After Termination. Except in the event of termination for breach by either party, upon the termination of this Agreement, Elevation will pay commissions to Affiliate for any Commissionable Leads that meet the requirements set forth in Section 6(a)(i) through (iii) hereof prior to such termination.
e. No Other Payments. Except as expressly provided in this Section, Affiliate is not entitled to any fees, reimbursements or other payments. Affiliate shall promptly refund to Elevation any overpayments.
- Confidentiality. Throughout the term of this Agreement, Affiliate may receive Confidential Information (as hereinafter defined) from Elevation. For the purposes hereof, the term “Confidential Information” shall mean, collectively, the financial condition, ownership, management, properties and assets of Elevation, (ii) the systems, software, hardware, documentation, specifications, drawings, reports, manuals, blueprints, letters, programs, source code, know-how, routines, subroutines, programming and other techniques, contracts, agreements (including, without limitation, the terms of this Agreement), processes, trade secrets, intellectual property rights, products, services, costs, inventions, marketing and sales techniques, researches and research programs, corporate strategies of Elevation and the persons that Elevation and/or its affiliates represent, and (iii) the names of and relationships with all persons with which Elevation transacts business, including, without limitation, to all existing, former and prospective suppliers, customers, joint venture partners, investors, principals, lenders, financiers and other capital sources of Elevation. Confidential Information does not include information that (a) is previously rightfully known by Affiliate without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the Affiliate, (c) is disclosed to the Affiliate by a third party without breach of any separate nondisclosure obligation, of (d) is required to be disclosed to a governmental authority pursuant to judicial order or decree or by applicable law. Affiliate agrees to hold the Confidential Information in the strictest confidence and undertakes not to disclose to any third party any of the Confidential Information nor use the Confidential Information for any purposes other than the purpose contemplated herein without the express prior written consent of Elevation. Affiliate agrees, upon termination of this Agreement or upon written request by Elevation, to return or to destroy all documents and other tangible materials containing or constituting any Confidential Information, including all copies thereof and all such notes which disclose Confidential Information, and Affiliate will make no further use of such documents or materials.
- WARRANTIES. ELEVATION MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND ABOUT ITS PRODUCTS OR ANY OF ITS SERVICES PROVIDED BY ELEVATION TO ANY PARTY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- DISCLAIMER OF DAMAGES; LIMITATION OF LIABILITY. TO THE EXTENT PERMISSABLE UNDER APPLICABLE LAW, ELEVATION SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY THEREOF. TO THE EXTENT PERMISSIABLE UNDER LAW, THE AGGREGATE LIABILITY OF ELEVATION REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR TORT) SHALL BE LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
- Indemnity. Affiliate shall indemnify, defend and hold Elevation and its officers, managers, members, agents and employees from and against all claims, suits, demands, actions, proceedings, judgments, penalties, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable legal and expert witness fees) resulting from any and all third-party claims against Elevation arising from or relating to (a) any representation and/or warranty made by Affiliate directly or indirectly relating to this Agreement or the Services, (b) Affiliate’s acts or omissions in promoting Elevation or the performance of this Agreement, (c) Affiliate’s breach of this Agreement, or (d) Affiliate’s violation of applicable law or regulation.
a. Non-Exclusive Agreement. Each party acknowledges that this Agreement does not create an exclusive agreement between the parties. Each party shall have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties. Notwithstanding the foregoing, once Affiliate establishes a Commissionable Lead with Elevation, Affiliate agrees not to refer a competitor of Elevation to such Commissionable Lead. Affiliate agrees not to enter into an agreement with a third party the effect of which would prohibit Affiliate’s submission of a Proposed Lead pursuant to this Agreement.
b. Notice. Routine communications under this Agreement may be made by e-mail. Any legal notices under this Agreement, including without limitation notices regarding termination, breach, indemnification, or other non-routine matters, shall be effective only if delivered in writing and in compliance with this section. Notice shall be deemed to be given (a) as of the date delivered if delivered personally; (b) one (1) day after delivery if sent by overnight courier; or (c) upon receipt if sent by U.S. certified mail, return receipt requested; in either case to the respective address for the party as set forth herein or in the Affiliate Form.
c. Assignment. Any assignment of this Agreement by either party in whole or in part without the other party’s prior written consent, which consent shall not be unreasonably withheld, will be null and void except an assignment to a successor, that is not a competitor of the other party, made in connection with a merger or sale of all or substantially all of either party’s assets or stock.
d. Entire Agreement. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement may be executed in counterparts, including by electronic signature, pdf or facsimile, each of which will be deemed an original, but all of which will constitute one and the same document.
e. Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has the authority to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose without such party’s prior consent.
f. Publicity. Except for the purposes of fulfilling each parties’ obligations herein, neither party shall use the other party’s trademarks or make any public statements concerning this Agreement or the relationship between the parties without the other party’s prior written consent, which shall not be unreasonably withheld. If either party desires to issue a press release regarding the arrangement contemplated hereunder, it shall not do so without the other party’s prior written approval.
g. Governing Law. This Agreement shall be governed by the internal laws of the State of Florida, without regard to conflict of laws provisions. All rights and remedies of the parties under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies.
h. Equitable Relief. Either party may seek equitable relief from a court at any time. Except for an action to obtain equitable relief, neither party may commence a civil action with respect to the matters submitted to mediation until after completing mediation.
i. Arbitration. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives. Any dispute arising out of or relating to this Agreement, or the breach, termination or validity thereof, that has not been resolved by negotiation within thirty (30) days after a party’s request for negotiation, shall be settled by final, binding arbitration under the rules of the then-current JAMS Streamlined Arbitration Rules & Procedures, https://www.jamsadr.com/rules-streamlined-arbitration/ (“JAMS”); provided, however, that either party retains the right to apply to any court of competent jurisdiction worldwide to protect and enforce its intellectual property and other rights. The arbitrator will be able to award damages only if consistent with the terms of this Agreement. The arbitration will be held in Miami, Florida and the laws of the State of Florida, USA shall govern this Agreement, without regard to any conflicts of laws rules. The parties will share equally the arbitrator’s fees and expenses pending the resolution of the arbitration unless the arbitrator, pursuant to its right but not its obligation, requires the non-prevailing party to bear all or any portion of the costs of the prevailing party, including its reasonable attorney’s fees and the cost of the arbitrator. The decision of the arbitrator will be final and may be sued on or enforced by the party in whose favor it runs in any court of competent jurisdiction at the option of such party.
j. Force Majeure. Neither party shall be liable for a failure to perform any of its obligations hereunder when such failure is caused by or results from (i) strike, blacklisting, boycott or sanctions however incurred; or (ii) acts of God, public enemies, authority of law, embargo, quarantine, riot, terrorist attack, insurrection or war.
k. Waiver. A party’s waiver of any breach of this Agreement by the other party will not constitute a waiver of any rights or any subsequent breach of the same or different provision thereof. To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving party. Where written consent is required, such consent must be in a writing signed by a duly authorized representative of the consenting party, except where e-mail consent is expressly permitted.
BY CLICKING “I AGREE” AFFILIATE REPRESENTS THAT (i) AFFILIATE HAS SUBMITTED COMPLETE AND ACCURATE INFORMATION IN RELATION TO WITH ITS APPLICATION, AND (2) AFFILIATE IS ENTERING INTO THIS AGREEMENT ON ITS OWN BEHALF AND THAT THE PERSON CLICKING “I AGREE” HAS AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF AFFILIATE. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT WISH TO ENTER INTO THIS AGREEMENT ON YOUR OR AFFILIATE’S BEHALF, OR IF YOU OR AFFILIATE DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, AFFILIATE WILL NOT BE ELIGIBLE FOR PARTICIPATION IN ELEVATION’S REFERRAL PROGRAM.