Reseller Partner Agreement Terms & Conditions - CommonDenominator.email

CommonDenominator – Company Referral and Distribution Agreement

THIS AGREEMENT (the “Agreement”) is made between CommonDenominator, Inc., a New York corporation with offices at 29 S. Chestnut St, New Paltz, NY 12561 (“CommonDenominator”) and ________________________ “Company”), a ___ corporation with offices at __________________________________________________. This Agreement shall be effective on the latter of the dates indicated by the below-referenced signatories (the “Effective Date”).

Background

CommonDenominator provides email marketing services whereby clients use it for email program strategy and execution, ad operations, media buying, integrations/technology/development, list growth, hygiene, etc… COMPANY provides services to and interacts with (or otherwise may have knowledge of) website operators and email service providers (“Clients”) who may benefit from an engagement with CommonDenominator. Subject to the following terms, CommonDenominator agrees to authorize COMPANY as a limited reseller of CommonDenominator’s services, permitting COMPANY to enter into agreements with clients.

TERMS AND CONDITIONS

1. Definitions.

(a)

(b) “Compensable Lead” means a Lead that executes a CommonDenominator Agreement with CommonDenominator within one (1) year after the Referral Date.

(c) “Lead” means a prospective client referred to CommonDenominator by COMPANY through an in-person meeting, joint sales call, email or telephone introduction.

(d)
(e) “Compensable Lead” means a Lead that at the time of Receipt (a) has not been contacted by CommonDenominator over the course of the past ninety (90) days; or (b) has not used CommonDenominator’s services or engaged in any business activities with CommonDenominator over the course of the past ninety (90) days. The foregoing notwithstanding, any Lead that does not meet the foregoing requirements may nonetheless be designated by CommonDenominator as a Compensable Lead, subject to a full or partial Revenue Shares as may be mutually agreed to by COMPANY and CommonDenominator.

(f) “Referral Date” has the meaning ascribed to such term in Section 2(c) hereof.

(g) “Revenue Share” means a fee paid out to Company which is calculated as 10% the total gross revenue earned by Compensable Leads over a given month for as long as the ‘Lead’ remains a paying ‘Client’ of CommonDenominator. Orders for CommonDenominators Services will be paid directly to CommonDenominator.

(h) “Receipt” means that CommonDenominator has actually received a document or email from COMPANY containing referral contact information. Unless otherwise agreed by the parties, any Lead referrals shall be sent by COMPANY to CommonDenominator at: Chris Drazek, chrisd@commondenominator.email (914-3192824) unless another CommonDenominator contact is agreed to by the parties (“CommonDenominator Contact”).

(i) “CommonDenominator Agreement” means a written agreement between a Lead and CommonDenominator under which a Compensable Lead provides CommonDenominator payment for services performed.

2. Referral Description and Terms.

(a) COMPANY shall (in its discretion) send Leads to the above-identified CommonDenominator Contact, upon determining such Lead may be an appropriate CommonDenominator’s client.

(b) For each Lead opportunity, COMPANY shall notify the CommonDenominator Contact in writing or by email as to the company name of the lead and contact information for that respective lead.

(c) CommonDenominator will have five (5) business days from Receipt to review each Lead to determine if the Lead named therein is a Compensable Lead. The date of a Lead Registration is the “Referral Date.” Any Lead Registration can be rejected if CommonDenominator is actively working the Lead as indicated by CommonDenominator’s CRM system.

(d) Upon CommonDenominator’s acceptance of a Compensable Lead, CommonDenominator may enter into a CommonDenominator Agreement with the Compensable Lead.

(e) Thereafter, for the length of any CommonDenominator Agreement between CommonDenominator and the Compensable Lead, including any renewals, extension, amendment and modification thereof, CommonDenominator shall pay the Revenue Share as set out herein. All Revenue Share payments shall be made to COMPANY by CommonDenominator within thirty (30) days of the last day of the month in which the services are provided. CommonDenominator agrees to provide COMPANY with a monthly summary of all revenue generated under this Agreement for the prior month.

3. Other Rules.

(a) CommonDenominator reserves the right to refuse to approve, renew or proceed with an Agreement with any Lead for lack of creditworthiness, concerns about the nature of its business model including privacy concerns, or for any other reason in its sole discretion.

(b) Each party understands this Agreement is non-exclusive. Without limiting the generality of the foregoing, COMPANY acknowledges that nothing in this Agreement shall prevent or limit CommonDenominator from marketing and selling its services, or otherwise engaging with prospective clients, directly or indirectly, to any Leads or from appointing representatives, resellers, distributors and other marketing agents, provided that it pays the Referral Fees related to such Leads should CommonDenominator execute CommonDenominator Agreements with such Leads.

(c) This Agreement is effective as of the Effective Date and will remain in effect for twelve (12) months after the Effective Date. Thereafter it will renew automatically on the anniversary date of the Effective Date, on an annual basis, unless terminated by either party as set forth herein. The following Sections of this Agreement shall survive any termination or expiration of this Agreement: 1, 2(e) – (h) and 3(c) – (m).

(d) This Agreement may be terminated by either party upon thirty (30) days written notice. Within thirty (30) days of such termination, CommonDenominator shall pay to COMPANY all Referral Fees due hereunder as of the termination date and for a period of one (1) year thereafter.

(e) From time to time, in connection with this Agreement, either party (the “Disclosing Party”) may disclose or make available to the other party (the “Receiving Party”) non-public information, including the terms of this Agreement and any Leads hereunder (“Confidential Information”) which may be in oral or in physical form. Each Receiving Party agrees that: (a) it will use Confidential Information of the Disclosing Party solely for the purpose(s) of this Agreement; and (b) it will take all reasonable precautions to ensure that it does not disclose Confidential Information of the Disclosing Party to any third party (other than as otherwise required by law, as consented to in writing by the Disclosing Party, or to the Receiving Party’s employees on a need-to-know basis who are bound by obligations of nondisclosure and limited use at least as stringent as those contained herein). Upon request by the Disclosing Party, the Receiving Party will return to the Disclosing Party all copies of any Confidential Information of the Disclosing Party, except archival copies. The Receiving Party will be responsible for any breach of this section by its employees. This Agreement does not affect or diminish any obligation that the parties may have to one another under any other agreement regarding confidentiality.

(f) 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.

(g) This Agreement is not assignable, transferable or sublicensable by either party, without the other party’s prior written consent, except that the Agreement may be assigned or transferred to a successor in interest in the event of any sale of all or substantially all of the business or assets of a party (whether by way of asset sale, stock sale, merger, consolidation or otherwise).

(h) This Agreement will be governed by and construed in accordance with the internal laws of the State of New York without regard to the choice of law or conflict of laws provisions thereof.

(i) Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties with respect to the subject matter of this Agreement and supersedes and cancels all previous written and oral agreements, communications and other understandings (other than any confidentiality or nondisclosure agreements) relating to the subject matter of this Agreement. There are no third party beneficiaries to this Agreement (other than the persons entitled to indemnification hereunder), which is made solely on behalf of the parties to it.

(j) The parties acknowledge that the purpose of the relationship created herein shall be a referral agreement only and that no agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has authority of any kind to bind the other party in any respect whatsoever and shall not purport to do so. The relationship of the parties hereunder shall be that of independent contractors only, and COMPANY is not authorized hereunder to resell or sublicense any CommonDenominator products or services to any person or entity.

(k) All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

(l) CommonDenominator shall indemnify and hold harmless COMPANY and its successors or assigns, owners, officers, directors, employees and consultants from and against any and all claims, losses, liabilities, damages, costs, and expenses (including attorney’s fees, expert witness fees, and court costs) directly or indirectly arising from or related to any actual or alleged (i) violation of any third party rights or law (including any laws or regulations relating to privacy) by CommonDenominator, or (ii) any infringement, misappropriation, or violation of any third party’s patents, copyrights, trade secret rights, trademarks, privacy rights, or other intellectual property or proprietary rights of any nature resulting from or arising out of any data provided by CommonDenominator. COMPANY shall indemnify and hold harmless CommonDenominator and its successors, assigns, owners, officers, directors employees and consultants from and against any and all claims, losses, liabilities, damages, costs and expenses (including attorney’s fees, expert witness fees, and court costs) of a third party directly or indirectly arising from or related to any actual or alleged (i) any violation of law or any third party rights by COMPANY related to its obligations under or activities in carrying out this Agreement.

(m) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE), WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE BASIS OF THE CLAIM AND EVEN IF THE PARTY OR A PARTY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EXCEPT FOR ANY BREACH OF SECTIONS 3(e) or 3(l), EACH PARTY’S CUMULATIVE LIABILITY FOR DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF THE ACTION, WILL BE LIMITED TO $1,000.00; PROVIDED THAT, COMMONDENOMINATOR SHALL CONTINUE TO BE LIABLE TO COMPANY FOR ALL REVENUE SHARES THAT BECOME DUE AND PAYABLE UNDER THIS AGREEMENT FROM TIME TO TIME, UNTIL SUCH REVENUE SHARES ARE PAID IN FULL.

(n) At its own expense but no more than once every twelve months, upon reasonable prior written notice and during dates and times mutually agreed upon by the parties, COMPANY may have its independent auditors examine, books and records with respect to all transactions for which payments may be due under this Agreement, for the sole and limited purpose of verifying COMMONDENOMINATOR’s accurate reporting. If the results of the audit show discrepancies in excess of five percent (5%), COMMONDENOMINATOR will pay the cost of the audit in addition to remitting any overpayments to COMPANY.

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date set forth above.