Terms And Conditions for Referral
BY CLICKING THE “SIGN UP” BUTTON ON THE PROFITOATH REFERRAL PROGRAM SIGN UP PAGE, YOU ARE SIGNING THIS AGREEMENT ELECTRONICALLY. THIS ELECTRONIC SIGNATURE IS THE LEGAL EQUIVALENT OF YOUR SIGNATURE ON PAPER AND WILL BE LEGALLY BINDING AND ENFORCEABLE. BY CLICKING THE “SIGN UP” BUTTON, YOU AGREE TO BE LEGALLY BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL DOCUMENTS, POLICIES AND PROCEDURES REFERRED TO IN THIS AGREEMENT AND INCORPORATED HEREIN BY REFERENCE.
THIS REFERRAL AGREEMENT (“Agreement”)
is entered into by and between ProfitOath.COM, INC., an Ohio corporation (“ProfitOath”)
, and the individual and business listed in the ProfitOath Referral Program Sign-up page (“Referral Partner”).
ProfitOath and Referral Partner may each be referred to herein as a “Party”
and collectively as the “Parties”.
ProfitOath provides payment processing services to a variety of merchants in relation to credit/debit card payment methods for transactions between such merchants and their customers (“ProfitOath Services”);
ProfitOath has rights to the name, trade names, trademarks and logos of ProfitOath (which names, likeness, and logos either collectively or individually may hereinafter be referred to as the “ProfitOath Name”
), and has the right to license the same to Referral Partner; and
Referral Partner desires to use the ProfitOath Name to market and promote the ProfitOath Services to prospective merchants that may desire to use the ProfitOath Services (“Merchants”);
the Parties desire to enter into an agreement to set forth their respective rights, duties and obligations with respect to the marketing and promotion by Referral Partner of the ProfitOath Services.
in consideration of the mutual promises contained herein, and intending to be legally bound, the Parties agree as follows:
2. DEFINITIONS AND INTERPRETATION
- In this Agreement:
- Chargebacks means in relation to any transaction processed by ProfitOath for a Live Referred Merchant, the sum of all goods and services representing (i) a disputed charge by the Live Referred Merchant’s customer; (ii) a rejected sales draft that is returned unpaid for any reason, including fraud, by the issuer of the credit debit card; or (iii) a return or refund, in each case that is charged back to a Live Referred Merchant;
- Confidential Information means all business, technical and financial information one Party provides to the other Party, specifically including without limitation (i) the existence and terms of this Agreement; (ii) all information which is obtained from the other party and which is marked “confidential” or “proprietary”; (iii) the source code, object code, and algorithms, contained in the software and technology used by ProfitOath; and (iv) any lists of ProfitOath clients or data related thereto;
- Effective Date means the date that Referral Partner’s online referral application submitted through the ProfitOath website is accepted and approved by ProfitOath.
- Intellectual Property Rights means all intellectual property rights in any part of the world and includes patents, registered and unregistered trademarks and service marks, rights in business and trade names, rights in domain names, registered designs, copyrights, database rights, rights in confidential information and know-how and in each case rights of a similar or corresponding character and all applications and rights to apply for protection of any of the foregoing;
- Introduced Merchant means a Merchant not already contracted with ProfitOath that is introduced to ProfitOath by Referral Partner through the Referral Link, submits an application and is approved by ProfitOath to use the ProfitOath Services;
- Referred Merchant means an Introduced Merchant that completes its first transaction using the ProfitOath Services;
- Merchant Live Date means the date on which an Introduced Merchant completes its first transaction using the ProfitOath Services;
- Net Sales Volume means in relation to any Live Referred Merchant, the settled gross sales volume less Refunds and Chargebacks during a specified period;
- Prospective Merchant means an Introduced Merchant that has applied to use the ProfitOath Services but has not yet been approved by ProfitOath to use the ProfitOath Services;
- Referral Link means the unique URL provided to Referral Partner by ProfitOath to be included on Referral Partner’s website for purposes of recording each of Referral Partner’s Live Referred Merchants;
- Refunds means in relation to any transaction process by ProfitOath for a Live Referred Merchant, the sum of all transactions refunded by the Merchant to the Merchant’s customer.
- In this Agreement unless expressed to the contrary or the context otherwise requires:
- “include”, “includes” and “including” are to be construed so that the examples that are given are not intended to be exclusive or limiting examples of the matters in question;
- a reference to a Party includes (where applicable) its lawful successors, permitted assigns and transferees;
- reference to a “person” includes references to any natural person and to any corporate or other bodies that have a legal personality;
- headings are inserted for convenience only and shall be ignored in interpreting and/or construing this Agreement.
3. THE PARTIES’ OBLIGATIONS
- Referral Partner shall
- Use its resources and sales expertise to market and promote ProfitOath as the preferred provider for payment processing services to Merchants, using the ProfitOath logo and Referral Link provided by ProfitOath;
- obtain ProfitOath’s written approval, which approval will not be unreasonably withheld, before releasing any marketing or promotional materials other than the ProfitOath logo and Referral Link provided to Referral Partner by ProfitOath, or making any substantive changes to any previously approved marketing or promotional materials;
- not, in any way, use ProfitOath, or any variation thereof for paid search. Such actions will result in immediate termination of this Agreement by ProfitOath, and ProfitOath will not be obligated to pay to Referral Partner any future revenue share payments for any Introduced or Prospective Merchants;
- not recruit or solicit any Merchants with a pre-existing relationship with ProfitOath; and
- use the Referral Link for purposes of using the ProfitOath Services to accept payments for Referral Partner’s (or its affiliate’s) business.
- Checkout shall:
- provide Referral Partner’s Merchants with access to the then current form of ProfitOath’s merchant application through Referral Partner’s Referral Link that will direct Merchants to the ProfitOath website;
- review all applications submitted by Prospective Merchants in accordance with ProfitOath’s then current underwriting standards and other risk assessment criteria;
- not be obligated to accept any Prospective Merchant, and ProfitOath is entitled to make its own decision based upon its underwriting standards and other risk assessment criteria applied to all of ProfitOath’s potential merchants in making its decision to approve or decline an application received from any Prospective Merchant referred by Referral Partner; and
- enter into its then standard agreement with any Prospective Merchant, provided that the Prospective Merchant is acceptable to and approved by ProfitOath, in ProfitOath’s sole discretion in accordance with its then current underwriting standards and other risk assessment criteria.
- Referral Partner acknowledges that it is not exclusively engaged by ProfitOath to promote and market the ProfitOath Services and that nothing in this Agreement shall prevent ProfitOath from promoting and marketing the ProfitOath Services itself or from engaging any other person to promote and market the ProfitOath Services.
- Referral Partner shall not, directly or indirectly, enter into any agreement or arrangement with any Merchant to which ProfitOath provides the ProfitOath Services which gives Referral Partner any rights in respect of that Merchant in relation to the ProfitOath Services.
- Without prejudice to Section 13 of this Agreement, Referral Partner is not an agent for ProfitOath and has no authority to act in the name or on behalf of or otherwise to bind ProfitOath in any way or to make any representation or warranty in relation to the ProfitOath Services.
4. REFERRAL PARTNER REVENUE SHARE
- In respect of each Live Referred Merchant, from the relevant Merchant Live Date and during the term of this Agreement, ProfitOath will pay Referral Partner a revenue share equal to 10% of the Net Sales ( the final payment amount after the discount coupon or point rewards deduction ) and we associate purchases of the same user to an affiliate permanently. Referral Partner will be paid within the seven (7) working days after Referral Partner send the withdraw request. In the event that the revenue in any request is less than SGD10 / IDR 100.000 , your withdraw process will be decline and waiting until your next request has minimum amount. For Indonesian people you can send us your local bank account for sending your revenue, and for other country, you should send us your paypal email for sending your revenue. Notwithstanding the foregoing or any other provision of this Agreement to the contrary, Referral Partner shall not earn, and ProfitOath shall be under no obligation to pay Referral Partner, any revenue share under this Agreement until Referral Partner’s total revenue share from all Live Referred Merchants reaches SGD10 / IDR 100.000.
- ProfitOath will provide Referral Partner access to a unique Referral Link designed to record each of Referral Partner’s Introduced Merchants. In the event of the unauthorized use of such Referral Link, cookie stuffing or anything else that generates illegitimate referral credit, ProfitOath reserves the right to immediately cancel the Referral Link, and discontinue making revenue share payments to Referral Partner, without notice to Referral Partner. In all other circumstances, ProfitOath may discontinue the Referral Link, and the campaigns associated with the distribution of the Referral Link, for any reason at any time by providing notice to Referral Partner. For this sole purpose, notice will be provided to Referral Partner via email. If cancellation of a Referral Link occurs, a new and/or different Referral Link may be provided to Referral Partner, at ProfitOath’s sole discretion. ProfitOath and Referral Partner may review each campaign every ninety (90) days, or as needed, to determine the future continuation or cancelation of each campaign.
- Referral Partner is responsible for any fees, overhead expenses, travel or other costs and expenses incurred by Referral Partner in connection with marketing and promoting the ProfitOath Services.
- Notwithstanding anything in this Agreement to the contrary, under no circumstances shall Referral Partner be entitled to any revenue share payment under this Agreement in relation to any Live Referred Merchant that is owned or controlled by Referral Partner or an affiliate of Referral Partner.
5. CONFIDENTIALITY AND NON DISCLOSURE : PRIVACY
- Each Party agrees that it shall hold in confidence and shall not use or disclose (except as expressly allowed herein) any Confidential Information of the other Party except for purposes of this Agreement.
- Referral Partner shall not make any announcement or disclosure about its relationship with ProfitOath under the terms of this Agreement without the prior written consent of ProfitOath.
- Notwithstanding the foregoing, neither Party shall be obligated under this section with respect to information: (i) that is or has become generally available or known to the public through no fault of the recipient; (ii) that is developed independently by the recipient; (iii) that was rightfully received by the recipient without obligation of confidentiality from a third party; (iv) that was in the recipient’s possession prior to its disclosure by the other Party; or (v) whose disclosure is required by law, provided that the recipient gives the disclosing Party prompt notice of the request for disclosure, gives the disclosing Party the opportunity to obtain a protective order, or other remedy, and discloses only that portion of the confidential information which it is legally compelled to disclose. Neither Party may disclose the terms of this Agreement to any third party other than its financial and legal advisors without the other Party’s prior written consent.
- Other than as expressly permitted under this Agreement, on the termination of this Agreement, each Party shall forthwith cease to use any Confidential Information of the other Party and shall return on demand, or at the request of the other Party, destroy or permanently erase all copies of that Confidential Information in its possession or control, except that either Party shall be permitted to retain one (1) copy of such part of the Confidential Information for the purposes of, and for so long as required by, any applicable law or by judicial or administrative process or for its legitimate internal compliance purposes.
6. INDEMNIFICATION AND LIABILITY
- ProfitOath shall indemnify and hold harmless Referral Partner, its affiliates, directors, officers, employees and agents against any and all losses, claims, damages, liabilities, actions, costs or expenses which arise out of, directly or indirectly, a breach of ProfitOath’s obligations under this Agreement, but only to the extent that such losses, claims, damages, liabilities, actions, costs or expenses are not caused by Referral Partner.
- Referral Partner shall indemnify and hold harmless ProfitOath, its affiliates, directors, officers, employees, and agents against any and all losses, claims, damages, liabilities, actions, costs, or expenses which arise out of, directly or indirectly, a breach of Referral Partner’s obligations under this Agreement, but only to the extent that such losses, claims, damages, liabilities, actions, costs or expenses are not caused by ProfitOath.
- Except for a breach by either Party of the obligations to protect Confidential Information or the obligation to indemnify, neither Party shall be liable to the other for any indirect, consequential, special or punitive damages, or any lost profits or lost goodwill, nor shall either Party’s liability to the other exceed the amount of the revenue share payments paid by ProfitOath, or its designee, to Referral Partner, or its designee, in the six (6) months immediately preceding the first event giving rise to the first such claim.
7. GOVERNING LAW AND JURISDICTION
- This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, with regard to it choice of law provisions. The Parties agree that the state and federal courts located in Franklin County, Ohio shall have exclusive jurisdiction of and venue in any claim or action arising under or related to this Agreement. Both Parties hereunder waive their respective rights to a trial by jury in any judicial proceeding involving any claim relating to or arising under this Agreement.
- If any dispute arises between the Parties regarding any Party’s rights or obligations pursuant to this Agreement, the prevailing Party will be entitled to reasonable attorneys’ fees, attorneys’ costs, expert witness fees and court costs incurred in connection with litigation.
- Regardless of any law or statute to the contrary, both Parties agree that any claim or cause of action arising out of or relating to this Agreement must be filed within one (1) year of the date the cause of action arose or be deemed waived and forever barred as untimely.
- The Parties acknowledge and agree that this Agreement shall not preclude either Party from entering into similar agreements with other Parties.
- Each Party may rely on the other Party’s compliance with all applicable laws. Violation of applicable law by a Party which allows or permits said Party to take any action under or pursuant to this Agreement which such Party would not otherwise have been able to do or take, shall constitute a breach of this Agreement.
- No Party shall be liable for a delay in performance hereunder where the cause for such delay is beyond the reasonable control of that Party. Such causes shall include, without limitation, acts of God, riots, acts of war, epidemics, governmental regulations imposed after the fact, earthquakes or other natural disasters.
- Your Order and this Agreement are personal to You. You shall not assign Your rights or delegate Your obligations under this Agreement, in whole or in part, without the prior written consent of Avangate. Any attempted assignment or delegation by You shall be voidable ab initio by Avangate. This Agreement shall be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.The headings contained in this Agreement are for convenient reference only, and shall not be considered substantive nor affect the interpretation of this Agreement.
- Upon termination of this Agreement, all rights and obligations of any Party will cease to have effect immediately, except that the clauses and paragraphs which expressly or by implication have effect after termination will continue to be enforceable notwithstanding such termination, including without limitation all Clauses.
Last Modified: 09 Aug, 2019.