Last Modified: June 5, 2019
This Referral Agreement (the “Agreement”) by and between The Psychic School, Inc., a Nevada Non-Profit Corporation (“Company”) and (“Affiliate”) (each a “Party” and together the “Parties”).
WHEREAS, Company offers the Company Services (defined below); and
WHEREAS, Affiliate has certain outreach channel to reach individuals who may need Company’s Services; and
WHEREAS, Company and Affiliate wish to enter into an arrangement whereby Affiliate shall identify such interested parties to Company, in accordance with the terms of this Agreement;
NOW, THEREFORE, in consideration of the mutual benefits of the covenants and restrictions herein contained, Company and Affiliate hereby agree as follows:
1. Definitions. Defined terms have the meanings set forth in this Section 1 and elsewhere in this Agreement when capitalized, and may be read in singular, plural, or an alternative tense as the context requires.
1.1. “Company Marks” means Company’s name, trademarks, trade names, service marks, and logos.
1.2. “Company Services” means the products and services offered through the Company’s website, except for any Company offered retreat.
2. Grant of Rights. Subject to the terms and conditions of this Agreement, Company hereby authorizes Affiliate to market, on a non-exclusive basis, the Company Services to Referrals (as defined below) by means of Company provided Identifiers (as defined below). Affiliate shall not have the authority to enter into any contracts on Company’s behalf or otherwise make any commitments whatsoever on behalf of Company. Affiliate shall not under any circumstances make any warranties or representations with respect to the Company Services, without the prior written approval of the Company.
3. Marketing the Company Services. Affiliate shall market the Company Services to Referrals at Affiliate’s own expense. Affiliate may create marketing materials, sales literature, and other information to promote the Company Services (“Marketing Materials”) using one or more Company Marks, provided that all such Marketing Materials require Company’s prior, written approval before each use by Affiliate, which approval may be withheld or conditioned at Company’s sole discretion. In addition, at Affiliate’s request, Company may, but is not obliged to, provide Affiliate its own Marketing Materials for Affiliate’s use in connection with this Agreement. Affiliate shall not use any Marketing Materials outside of the scope of this Agreement. In connection with its marketing efforts, Affiliate shall generate its own unique links to the Company Services for Referrals (defined below) using a Company provided user account; Company may also provide the Affiliate with coupon codes to use in its Marketing Materials. The aforementioned links and coupon codes are collectively and individually referred to as “Identifiers.”
4. Qualifying Leads.
4.1. Referrals. When used by someone interested in purchasing the Company Services (each, a “Referral”), the Identifiers will identify the Referral as having come from the Affiliate.
4.2. Qualified Leads. For the purposes of this Agreement, a “Qualified Lead” means a Referral that: (i) is not already a customer of Company, or, if the Referral has been a customer of Company in the past, has not purchased any Company Service for at least one (1) year following the termination of all previous Company Services, and (ii) has not had any marketing contact from Company (or any of its representatives) or has not used another affiliate’s Identifiers for at least one (1) year. Once a Referral has been deemed a Qualified Lead by Company, it shall remain a Qualified Lead, for purposes of this Agreement, for a period of three (3) months following notice from Company qualifying the Referral as a Qualified Lead. If the Qualified Lead does not execute a purchase of any Company Service during such three (3) month period, it shall no longer be deemed a Qualified Lead hereunder. Notwithstanding Company’s qualification of any Referral as a Qualified Lead, nothing in this Agreement or otherwise shall obligate Company to enter into a contract for sale or any other agreement with any Qualified Lead.
5. Referral Fees. As the sole compensation due to Affiliate, Company will pay Affiliate Fifteen Percent (15%) on the Qualified Lead’s first purchase only of Company Services (the “Referral Fees”). Any Referral Fees due to Affiliate shall be deemed earned by Affiliate, and shall become payable to Affiliate, within sixty (60) days after receipt by Company of payment in full from the Qualified Lead. Company shall have no obligation to pay Affiliate any Referral Fee or other amount (a) if a Qualified Lead cancels their purchase of Company’s Services, (b) if a Qualified Lead requests a refund within the terms of Company’s refund policy, or (c) if for any other reason payment in full is not received by Company.
6. Premium Affiliate Status. The Affiliate may qualify for premium status if the Affiliate receives Referral Fees from ten (10) Qualified Leads in a one (1) year period, provided however, that each of the ten (10) Qualified Leads purchase an enrollment in the Clairvoyant Meditation 101 Class offered by the Company (each such Qualified Lead, a “Premium Qualified Lead”). The one (1) year period begins when the Affiliate has received his or her Referral Fee from their tenth unique Premium Qualified Lead within one year of receiving his or her Referral Fee from the first Premium Qualified Lead (the “Start Date”). Affiliate’s premium status shall continue until the one (1) year anniversary of the Start Date (the “Renewal Date”). Affiliate’s premium status will renew on the Renewal Date only if the Affiliate has received Referral Fees from another ten (10) unique Premium Qualified Leads. While Affiliate has premium status, Affiliate is entitled to Referral Fees from all purchases of Company Services by its Premium Qualified Leads.
7.1. “Confidential Information” means nonpublic information revealed by or through either Party (the “Disclosing Party”) (whether in writing, orally or by another means) to the other Party (the “Receiving Party”) including, without limitation, (i) information expressly or implicitly marked or disclosed as confidential, or that reasonably should be considered confidential or proprietary based on the circumstances of disclosure or the nature of the information, including, without limitation, all forms and types of financial, business, scientific, technical, economic, engineering, customer, sales, procurement, supplier, personnel, including, without limitation, patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, codes, research, and strategies, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing; (ii) information traditionally recognized as proprietary trade secrets; (iii) the terms and conditions of this Agreement; and (iv) all copies of any of the foregoing or any analyses, studies, or reports that contain, are based on, or reflect any of the foregoing. For the avoidance of doubt, Company’s Confidential Information includes the Company Services. The term “Confidential Information” does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure by Receiving Party (or any person to whom the Receiving Party disclosed such information); (b) was known by the Receiving Party prior to its disclosure by the Disclosing Party; (c) was independently developed by the Receiving Party without use of the Confidential Information of the Disclosing Party; or (d) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not bound by a confidentiality agreement, confidentiality obligation or fiduciary duty which prohibits disclosure.
7.2. At all times the Receiving Party shall protect and preserve the Confidential Information of the Disclosing Party as confidential, using no less care than that with which it protects and preserves its own highly confidential and proprietary information (but in no event less than a reasonable degree of care), and shall not use the Confidential Information except as necessary to perform its obligations under this Agreement. The Receiving Party may disclose, distribute or disseminate the Confidential Information to its employees or consultants provided that the Receiving Party reasonably believes that those employees and consultants have a need to know and such employees and consultants are bound by confidentiality obligations at least as restrictive as those contained herein. Each Party shall remain at all times responsible for any breach of this Agreement by any of its employees or consultants. The Receiving Party shall not disclose, distribute or disseminate the Confidential Information to any third party without the prior written consent of the Disclosing Party. For the avoidance of doubt, Affiliate may disclose certain information to Referrals, including, without limitation, brand, product, and promotional information, to the extent necessary to develop Referrals.
7.3. In the event that the Receiving Party becomes or may become legally compelled to disclose any Confidential Information of the Disclosing Party (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or other process, or otherwise), the Receiving Party shall provide the Disclosing Party with prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section 7. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use its best efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
7.4. Promptly following the request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party, or, at the Disclosing Party’s option, destroy all materials that are in written, electronic, or other tangible form that contain, summarize, or abstract any portion of the Confidential Information of the Disclosing Party, including, without limitation, all copies, extracts, and derivations of such materials. Notwithstanding the foregoing, the Receiving Party shall not be obligated to destroy any electronically stored Confidential Information maintained in the ordinary course of the Receiving Party’s business for archival, backup, or disaster-recovery purposes (“Backup Media”) or as otherwise required to be retained under applicable law; provided however that all such Backup Media shall remain Confidential Information and subject to this Section 7.
7.5. The Parties acknowledge that the Disclosing Party’s Confidential Information represents unique and valuable assets. The Receiving Party agrees that, in the event of a breach of confidentiality obligations, monetary damages may not be an adequate remedy and the Disclosing Party shall be entitled to seek such other remedies as may be available in law or in equity, including injunctive relief. The Disclosing Party shall not be required to post a bond or other security in connection with the granting of any such relief.
8. Representations and Warranties; Disclaimer. Affiliate and Company each warrant that it is duly authorized to enter into this Agreement and make the commitments set forth in this Agreement. In addition, Affiliate represents and warrants that (i) the execution and performance of this Agreement by it does not, and will not, violate or conflict with the terms of any existing agreement or understanding to which it is a party, including, but not limited to, any non-disclosure, non-compete or other similar obligations to any other person, (ii) it shall comply with all applicable laws, rules, and regulations in connection with its business and the performance of its obligations under this Agreement, and (iii) it shall obtain and maintain all licenses and permits as may be required by the applicable governing authorities having jurisdiction over the Affiliate’s performance of its obligations under this Agreement.
9. Disclaimer. THE COMPANY SERVICES, AND ANY OTHER INFORMATION, IDENTIFIERS, OR MATERIALS PROVIDED BY COMPANY HEREUNDER ARE PROVIDED “AS IS” AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE COMPANY SERVICES WILL MEET ANY CLIENT OPPORTUNITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY HARDWARE, SOFTWARE, DEVICE, SYSTEM, OR SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF ANY VIRUS, MALWARE OR OTHER HARMFUL CODE, OR ERROR FREE. COMPANY SHALL HAVE NO AUTHORITY TO MODIFY THE REPRESENTATIONS AND WARRANTIES ABOUT THE COMPANY SERVICES. ANY ATTEMPT BY COMPANY TO MODIFY THESE REPRESENTATIONS AND WARRANTIES SHALL BE NULL AND VOID. TO THE EXTENT THAT COMPANY MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
10. Indemnification. Affiliate shall defend, hold harmless, and indemnify Company, and any party claiming by or through Company (the “Company Indemnified Parties”) from and against any all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees incurred by a Company Indemnified Party in connection with any third-party claim, action, or proceeding to the extent arising out of or based upon (i) any misstatement or omission of any material fact or other misrepresentation by Affiliate concerning Company or the Company Services, (ii) any violation of any applicable law, rule, or regulation by Affiliate, (iii) any breach by Affiliate of, or failure to perform its obligations under, this Agreement, or (iv) any gross negligence or willful misconduct on the part of Affiliate.
11. Limitation of Liability. SUBJECT TO THE EXCEPTIONS BELOW, (I) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES RESULTING FROM LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, LOSS OF BUSINESS REPUTATION OR GOODWILL, OR COSTS OF SUBSTITUTE GOODS OR SERVICES), WHICH EITHER PARTY MAY INCUR OR EXPERIENCE DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), AND (II) EACH PARTY’S ENTIRE LIABILITY TO THE OTHER, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, TORT, OR OTHER LEGAL THEORY, SHALL NOT EXCEED THE TOTAL REFERRAL FEES ACTUALLY PAID BY COMPANY TO AFFILIATE UNDER THIS AGREEMENT. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO COMPANY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, OR THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY.
12. Term and Termination.
12.1. The term of this Agreement begins on the Effective Date and will continue for one (1) year, unless otherwise extended pursuant to the written agreement of the Parties, or unless earlier terminated under this Section 12. Either Party may terminate this Agreement for any reason or no reason, upon one (1) week’s prior written notice to the other Party.
12.2. Following expiration or termination of this Agreement for any reason, Affiliate shall be entitled to Referral Fees for any sale made to a Qualified Lead prior to the expiration or termination of this Agreement, even if such Referral Fees do not become earned or payable until after such expiration or termination. Nonetheless, upon expiration or termination of this Agreement, Affiliate shall immediately cease all marketing activities with respect to the Company Services and shall return to Company and/or destroy all Marketing Materials.
12.3. Sections 1, 7, 8, 9, 10, 11, 12.2, 13, and 15 shall survive any termination or expiration of this Agreement.
13. Intellectual Property. All right, title, and interest in and to the Company Services and the Company Marks, including all intellectual property rights therein (collectively, the “Company IP”), are and will remain, respectively, with Company. Affiliate has no right or license with respect to the Company IP except as expressly provided under this Agreement. All other rights in and to the Company IP are expressly reserved by the Company. Upon expiration or earlier termination of this Agreement, all rights to use the Company IP by Affiliate shall immediately terminate. Affiliate acknowledges, represents, warrants and covenants that it shall not, directly or indirectly, challenge, or assist any other person or entity in challenging, Company’s right, title, and/or interest in or to the Company Marks.
14. Harmful Code. Affiliate represents and warrants that any website it uses to promote the Company shall not knowingly contain any Harmful Code. For purposes herein, “Harmful Code” means any computer code or any other procedures, routines, or mechanisms designed to (i) damage, disrupt, disable, harm, or otherwise impede in any manner, the orderly operation of any other software, data files, firmware, hardware, computer system, or network (sometimes referred to as “viruses” or “worms”); (ii) disrupt, disable, harm, or impair in any way such software’s (or any other software’s) orderly operation based on the elapsing of a period of time, exceeding an authorized number of copies, advancement to a particular date, or other numeral (sometimes referred to as “time bombs,” “time locks,” or “drop dead” devices); (iii) permit Affiliate, its personnel, its licensors, or any other third party to access such software for any reason (sometimes referred to as “traps,” “access codes,” or “trap door” devices)
15.1. Amendments and Modifications. Waivers, alterations, modifications, or amendments of a provision of this Agreement shall not be binding unless such waiver, alteration, modification, or amendment is in writing and signed by an authorized representative of both Parties.
15.2. Assignment. This Agreement, and all rights and obligations hereunder, may not be assigned, transferred, delegated, or subcontracted by Affiliate without the prior written consent of Company. For the avoidance of doubt, Affiliate shall not employ or engage any agent, partner, retailers, or wholesaler companies to prospect and market Company Services. Any attempt by Affiliate to assign, transfer, delegate, or subcontract any rights, duties, or obligations which arise under this Agreement without Company’s prior, written consent shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.
15.3. Entire Agreement. This Agreement constitutes the entire agreement between the Parties hereto regarding the subject matter hereof and shall supersede any prior, inconsistent, or additional provisions.
15.4. Governing Law. This Agreement shall be governed by the laws of the State of Nevada. For all such matters each Party submits to the exclusive jurisdiction of the state and federal courts located in Las Vegas, Nevada and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
15.5. Headings. The headings preceding the various paragraphs and subparagraphs of this Agreement are intended solely for the convenience of the Parties and shall not be deemed relevant in the construction of this Agreement or its terms.
15.6. Relationship of the Parties. It is agreed that the relationship of the Parties is that of independent contractor. Nothing herein shall be construed as creating a partnership, employment relationship, or agency relationship between the parties, or as authorizing either Party to act as agent for the other. Each Party maintains its separate identity. Neither Party shall represent to any third party that it has the authority to bind or otherwise obligate the other Party in any manner.
15.7. Severability. If any provision of this Agreement shall be held to be illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall apply only to such provision and shall not in any manner affect or render illegal, invalid, or unenforceable any other provision of this Agreement, and that provision and this Agreement generally shall be reformed, construed, and enforced so as to most nearly give lawful effect to the intent of the Parties as expressed in this Agreement.
15.8. Waiver. Waiver of breach of this Agreement shall not constitute waiver of another breach. Failing to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision.
15.9. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be an original, but which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused their respective authorized representatives to execute this Agreement.