This Partner Fee Agreement (this “Agreement” or this “Partner Fee Agreement”), effective as of the date of the last party to sign this Affiliate Fee Agreement (the “Effective Date”), is made and entered by and between Connectfood, Ltd. organized and existing in the State of Illinois, with a registered address located at 20 W Kinzie St, 17th Floor Chicago, IL 60654. (“Connectfood”) and [NAME], having a principal place of business at [LOCATION] (“Referral Partner Affiliate”, “you”, or “your”).
You acknowledge and agree that you have read, understand and agree to be bound by all of the terms and conditions of this Agreement, as well as all other applicable rules or policies provided by Connectfood from time to time, and understand that you are entering into a legally binding agreement with Connectfood. If you do not agree with the terms and conditions set forth herein, then you must not provide the referral services described herein.
Connectfood reserves the right to change and/or modify this Agreement and/or any applicable rules and/or policies at any time in its sole discretion and your continued provision of the referral services described herein after Connectfood’s posting of any changes will constitute your acceptance of such changes. Connectfood will provide notice of such changes by posting the updated terms and conditions on Connectfood’s website and changing the “last updated” date listed above. Any changes will be effective immediately upon posting such changes and such changes shall be incorporated herein by reference. If you do not agree with the changes, you should stop providing the referral services described herein after the effective date of the changes.
ARBITRATION NOTICE: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN ARTICLE 9, YOU AGREE THAT DISPUTES BETWEEN YOU AND CONNECTFOOD WILL BE RESOLVED BY MANDATORY BINDING ARBITRATION AND YOU WAIVE ANY RIGHT TO PARTICIPATE IN A CLASS-ACTION LAWSUIT AND/OR CLASS-WIDE ARBITRATION.
WHEREAS: Both parties wish to enter into this Agreement, whereby ConnectFood will pay Referral Partner Affiliate a Commission Fee (as defined below) for each client of ConnectFood referred by Referral Partner Affiliate subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the mutual covenants, agreements, and promises set forth herein, the parties agree as follows:
2. Description of Referral Arrangement
2.1. Referral Services. You shall market and promote Connectfood’s software-as-a-service solution that includes without limitation electronic Food Safety Plan / HAACP plan generator, log and records management, process flow designer, standard operating procedure (SOP) library, good manufacturing practices checklist, recall plan generator, and on-demand expert services (collectively the “SaaS Services”) to potential customers (“Potential Customers”) in accordance with this Agreement and earn a Commission Fee for Referred Customers as described herein. Subject to your compliance with the terms set forth herein, Connectfood hereby grants to you a non-exclusive, non-transferable, non-assignable right to market and promote the SaaS Services to Potential Customers. You shall limit your descriptions of the SaaS Services to the Connectfood Materials (defined below) provided by Connectfood and shall not make any representations with respect to Connectfood and/or its SaaS Services that are inconsistent with the terms of this Agreement or Connectfood Materials. You are not authorized to enter into contracts or agreements on behalf of Connectfood or to otherwise create obligations of Connectfood to third parties.
3. Registration Process; Referred Customers
3.1. Registration Process. Connectfood will provide you with an affiliate code and you must register each Potential Customer in through the Connectfood website by providing, at a minimum, your affiliate code, the first and last name, email address, and phone number of the contact for the Potential Customer, the company name and URL of the Potential Customer, and any other information requested by Connectfood. You must confirm with Connectfood that such Potential Customer is not an existing prospect or customer of Connectfood’s prior to the Potential Customer being accepted by Connectfood. Connectfood reserves the right to change the process described herein upon notice to you and/or reject any Potential Customer in its sole and absolute discretion.
3.2. Referred Customer. A Potential Customer registered by you and accepted by Connectfood that enters into an applicable agreement with Connectfood for a minimum of twelve (12) month period shall be considered a “Referred Customer.”
4.1. Commission Fee. In consideration for you providing the services described herein and subject to the terms and conditions set forth herein, during the term of this Agreement you shall earn a commission in an amount equal to [Agreed %] of the Net Collected Subscription Revenue (defined below) (“Initial Commission Fee”). The Commission Fee shall accrue after a Referred Customer has been a customer of Connectfood’s for at least thirty (30) days. Furthermore, you shall earn a commission in an amount equal to [Agreed %] of the Net Collected Subscription Revenue [received each month] for the perpetuity of the Referred Customer receiving access to SaaS Services from Connectfood during an uninterrupted period following your referral (“Ongoing Commission Fee”) (the Initial Commission Fees and Ongoing Commission Fees are together the “Commission Fees”). Net Collected Subscription Revenue means the actual subscription fees received by Connectfood from the Referred Customer for the SaaS Services minus chargebacks (and associated fees), credits and refunds provided to such Referred Customer in Connectfood’s sole discretion. For avoidance of doubt, the Net Collected Subscription Revenue relates only to the actual fees received by Connectfood from the Referred Customer for use of Connectfood’s SaaS Services and shall not relate to any other revenue source and/or other products and/or services provided by Connectfood to Referred Customer. In the event of a chargeback (and associated fees), credits and refunds provided to a Referred Customer, you acknowledge and agree that Connectfood may deduct the applicable portion of such amounts from your subsequent Commission Fee payments. In the event no further Commission Fee payments are due to you, then you shall promptly submit payment to Connectfood for any chargebacks (and associated fees), credits and refunds upon Connectfood’s request. Notwithstanding anything herein to the contrary, Commission Fees shall be earned only if (a) you follow the process described herein, (b) Connectfood receives full payment from such Referred Customer for its SaaS Services; and (c) you are not in breach of this Agreement.
4.2. Payment. Connectfood shall pay you the applicable earned Commission Fee within thirty 30 days after the end of the calendar month in which Connectfood receives payment from the Referred Customer. You will be solely responsible for all taxes, costs and expenses related to you providing the services described herein, and the Commission Fees will not incorporate any taxes, costs, or expenses you may have in connection with your activities in connection with this Agreement.
5. Payment Conditions
Referred Customers shall not be considered accepted by Connectfood, and Connectfood shall have no payment obligation for Commission Fees for a Referred Customer hereunder, unless and until a contract is signed by Connectfood and the Referred Customer.
6. Term and Termination
6.1. Term. The term of this Agreement shall commence on the Effective Date and continue until terminated by either party in accordance with the terms and conditions of this Agreement.
6.2. Termination for Breach. If a party materially breaches this Agreement (the “Defaulting Party”), and the Defaulting Party does not cure such breach within thirty (30) days after its receipt of written notice of material breach, the other party may terminate this Agreement upon written notice to the Defaulting Party. In addition, Connectfood may immediately terminate this Agreement and the license to Connectfood Properties if (a) you request that Connectfood immediately terminate this Agreement; (b) you violates the license to the Connectfood Properties; (c) you make a material misrepresentation in any submission to Connectfood or a Prospective or Referred Customer; (d) you perform any deceptive, fraudulent, unlawful acts or omissions in relation to your activities in connection with this Agreement; (e) you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors, or (f) an indemnifiable claim (as set forth in Section 9) is brought against Connectfood by a third-party. Termination of this Agreement will be without prejudice to any other rights and remedies that the non-defaulting party may have under this Agreement and/or at law and/or in equity.
6.3. Termination for Convenience. Either party may terminate this Agreement upon thirty (30) days prior written notice to the other party.
6.4. Effect of Termination. Upon termination of this Agreement, you will immediately (i) cease using Connectfood Materials (including Trademarks), (ii) return to Connectfood and thereafter destroy all Connectfood’s Confidential Information, Connectfood Materials, and information related to Referred Customers and Potential Customers, in your possession, custody, or control, (iii) discontinue holding yourself out as a marketer and promoter of the SaaS Services, and (iv) pay Connectfood all outstanding fees, charges and expenses incurred through the effective date of termination (such as any chargebacks). Connectfood will pay you Commission Fees earned for Referred Customers through the effective date of termination in accordance with the terms and conditions set forth herein.
7. Intellectual Property
7.1. Ownership; Access & Use; Restrictions. Connectfood owns all right, title and interest in and to the SaaS Services, Connectfood Materials and related developments, enhancements and revisions, intellectual property rights and/or proprietary rights therein and related thereto (“Connectfood Properties”). Connectfood shall establish, and may vary from time to time, the pricing, terms and conditions related to the SaaS Services. Connectfood grants you the right to access and use the SaaS Services solely for demonstration purposes as it relates to you providing the services described herein. You shall not (a) modify, adapt, alter, translate, copy, perform and display (publicly or otherwise) or create derivative works based on the Connectfood Properties; (b) merge or bundle the Connectfood Properties with other products and/or software; (c) sublicense, lease, rent and/or loan the Connectfood Properties; (d) reverse engineer, decompile, disassemble and/or otherwise attempt to derive the source code for the Connectfood Properties; (e) remove, modify and/or obscure any identification and/or proprietary and/or restrictive rights markings and/or notices from the Connectfood Properties; (f) access and/or use the Connectfood Properties in order to develop a product and/or service which competes with Connectfood; and/or (g) otherwise use, copy and/or distribute the Connectfood Properties except as expressly allowed hereunder. You shall not transmit any viruses and/or upload, access, store and/or distribute information that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, offensive or facilitates illegal activity and/or causes damage and/or injury to any person and/or property.
7.2. License Grants; Restrictions. During the term of this Agreement and subject to your compliance with this Agreement, Connectfood hereby grants to you a non-transferable, non-exclusive, limited license to use Connectfood’s (a) name, logos and/or trademarks (collectively, the “Trademarks”) and (b) brochures, marketing materials, referral links, white papers, case studies and/or other materials or information provided by Connectfood (((a) and (b) (collectively, the “Connectfood Materials”) in accordance with this Agreement solely in relation to the performance of the services described herein. Your use of such Connectfood Materials (including Trademarks) shall be in accordance with Connectfood’s policies and procedures established from time to time. You shall not (i) attach any other trademark, logo and/or trade designation to the SaaS Services unless expressly agreed in writing by Connectfood and/or (ii) do and/or cause to be done any act and/or anything contesting and/or in any way impairing and/or reducing Connectfood’s right, title and interest in the Connectfood Materials (including Trademarks). Connectfood has the right to discontinue and/or alter the form, shape and/or artwork of the Trademarks and/or content of the Materials. You acknowledge that your use of the Connectfood Materials (including Trademarks) shall not create any right, title and interest, in or to the Connectfood Materials (including Trademarks) and all such uses inure to the benefit of Connectfood. Connectfood reserves the right at any time to review your use of the Connectfood Materials (including Trademarks) to determine if such use is in compliance with this Agreement. In the event Connectfood desires to include your information on its referral partner website at any time during the term of this Agreement, you hereby grant to Connectfood a non-transferable, non-exclusive, limited license to use the logos and/or trademarks provided by you on such referral partner website.
8. Confidentiality; Privacy
8.1. Except as expressly permitted by Connectfood, you will keep all information related to the business of Connectfood and any of its affiliates, clients and other third parties to which you have access, whether in oral, written, graphic and/or machine-readable form, in the course of or in connection with this Agreement (collectively, the “Confidential Information”) confidential and will only use and disclose such Confidential Information only as strictly necessary to perform your obligations under this Agreement and for no other purpose. You may disclose the Confidential Information only to those who have a need to know such Confidential Information solely in connection with this Agreement; provided that you assume full responsibility for any failure to comply with this Agreement and that recipients agree to protect the Confidential Information as required by this Agreement. During the Term and for a period of three (3) years from the expiration or termination of this Agreement, you agree to safeguard the Connectfood’s Confidential Information against unauthorized use or disclosure with measures at least as stringent as those it employs to safeguard your own most proprietary and confidential information, and in no event with less than reasonable means. You shall notify Connectfood
promptly in the event you learn or have reason to believe that any person or entity has violated or intends to violate the confidentiality of Connectfood’s Confidential Information. You acknowledge that a breach of the obligations related to Confidential Information may result in irreparable and continuing damage to Connectfood for which monetary damages may not be sufficient, and you agree that Connectfood will be entitled to seek, in addition to its other rights and remedies hereunder or at law, injunctive or all other equitable relief, and such further relief as may be proper from a court of competent jurisdiction.
9. Representations and Warranties
9.1. Warranty. You represent, warrant and covenant that you (i) possess full power and authority to enter into this Agreement, (ii) have the proper skill, training and background to perform the services in a competent and professional manner; (iii) will use due diligence in safeguarding the interests of Connectfood in accordance with this Agreement and any policies and procedures provided to you by Connectfood; and (iv) will comply with all applicable laws, rules, regulations, orders of any governmental (including any regulatory or quasi-regulatory) agency, and will not violate or contravene the terms of any of Connectfood’s contracts.
9.2. Connectfood Warranty. Connectfood warrants that Connectfood possesses full power and authority to enter into this Agreement and has the ability to grant the rights described herein.
9.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES (AND THEY EXPRESSLY DISCLAIM) ANY OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, CONNECTFOOD LICENSES ACCESS TO THE CONNECTFOOD PROPERTIES ON AN “AS IS” BASIS, WITH NO OTHER EXPRESS OR IMLIED WARRANTY OF ANY KIND.
10. Indemnification; Limitation of Liability
10.1. Indemnification. You, at your expense, will indemnify, defend and hold harmless Connectfood, its officers, associates, employees, contractors and agents from and against any and all claims, damages, liabilities, losses, costs, demands and expenses (including reasonable attorneys’ fees and costs of litigation) (collectively “Claim(s)”) arising out of or relating to (a) any negligent act and/or omission of you relating to your activities in connection with this Agreement; (b) any misrepresentation by you related to Connectfood, its SaaS Services, Connectfood Materials and/or its other products and/or services(s); (c) your breach of this Agreement; (d) your gross negligence and/or willful acts and/or omissions; (e) any failure to comply with any applicable law, rule, regulation, order of any governmental (including any regulatory or quasi-regulatory) agency or contract; and/or (f) any determination by a federal, state or local government or administrative agency, or other regulatory or quasi-regulatory entity, or any court, that you acted as an employee of Connectfood in performing the services described herein (in which case you also waive any and all claims that you may have as a result of any such determination). You will be solely liable for any claims, warranties and/or representations made by you to third parties that differ from the warranties expressly provided by Connectfood. You will have the sole right to conduct the defense of any claim and/or action, and/or the negotiation of any settlement, in respect of a Claim; however, Connectfood may reasonably participate in such defense at its sole expense.
10.2. Limitation of Liability. CONNECTFOOD’S TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE COMMISSION FEES PAID BY CONNECTFOOD TO YOU DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 10.1, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, THE PROVISIONS OF THIS SECTION 10 CONSTITUTE YOUR SOLE AND EXCLUSIVE REMEDY AND CONNECTFOOD’S SOLE AND EXCLUSIVE LIABILITY UNDER THIS AGREEMENT.
10.3. Third Party Products & Services. You acknowledge and agree that Connectfood is not liable for the performance of any third-party products and/or services used in relation to this Agreement.
11. Dispute Resolution
11.1. Disputes. Before filing a claim against Connectfood, you agree to try to resolve the dispute informally by contacting Connectfood at partners@Connectfood.com Connectfood will try to resolve the dispute by contacting you via email, but if Connectfood cannot resolve the dispute within thirty (30) days of submission, you and/or Connectfood agree to resolve any claims related to this Agreement through final and binding arbitration, except as forth under ‘Exceptions to Agreement to Arbitrate’ section below.
11.2. Opt-Out. You can opt-out and decline this agreement to arbitrate by contacting Connectfood within thirty (30) day after the date that you first became subject to this arbitration provision (i.e.: the date you initially accepted this Agreement). You must write Connectfood at Connectfood, Inc., Attn: Opt-Out Arbitration, 20 W Kinzie St, 17th Floor Chicago, IL 60654. If you opt out, neither you nor Connectfood can require the other to participate in an arbitration proceeding.
11.3. Arbitration Procedures. Except in the event the claim meets the requirements set forth in the ‘Exceptions to Agreement to Arbitrate’ section below and/or if you opt out of arbitration as described herein, all claims shall be settled by binding arbitration in accordance with the commercial arbitration rules, in effect at the time the proceedings begin, of the American Arbitration Association. Any such controversy and/or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. All information relating to and/or disclosed by any party in connection with the arbitration of any disputes shall be treated by the parties, their representatives, and the arbitrator as proprietary business information and shall not be disclosed without prior written authorization of the disclosing party. Unless otherwise agreed to in writing by Connectfood, the arbitration shall be held in Chicago, Illinois. Each party shall bear the burden of its own counsel fees incurred in connection with any arbitration proceedings.
11.4. Exceptions to Agreement to Arbitrate. Either you and/or Connectfood may assert claims, if it qualifies, in small claims court in Chicago, Illinois. Either party may bring a lawsuit for injunctive relief to stop unauthorized use and/or abuse of the services, breach of Connectfood’s Confidential Information and/or intellectual property infringement without first engaging in arbitration and/or the informal dispute-resolution process described in this Article.
All notices and other communications given or made pursuant to this Agreement must be in writing, sent to the persons designated herein or to such other persons and addresses as the parties may designate from time to times and will be deemed to have been given one (1) business day after deposit with a nationally recognized overnight courier, freight prepaid, specifying next business day delivery, with written verification of receipt. Nothing contained in this Agreement shall create or imply any agency relationship between the parties, nor shall this Agreement be deemed to constitute a joint venture or partnership between the parties. It is further understood and agreed that your relationship with Connectfood is and shall continue to be that of an independent contractor and you shall not be entitled to receive employee benefits from Connectfood and you are responsible for the payment of all taxes and withholdings specified by law, which may be due in regard to payments made by Connectfood. No waiver of any of the terms of this Agreement by either party will be valid unless agreed to in writing and designated as such. Any forbearance or delay on the part of either party in enforcing any of its rights under this Agreement will not be construed as a waiver of such right to enforce same for such occurrence or any other occurrence. If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect. The headings and titles of the paragraphs of this Agreement are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein. You may not assign, as a result of a change of control or by operation of law or otherwise, your rights and/or obligations under this Agreement without the prior written consent of Connectfood. This Agreement will be binding upon the parties and their respective legal successors and permitted assigns. Any provision of this Agreement which, by its nature, would survive termination of this Agreement will survive any such termination of this Agreement. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of Illinois, without regard to its choice of laws principles. Any action related to or arising from this MSA that is an exception to the arbitration process described herein shall take place exclusively in the courts situated in Chicago, Illinois and the parties hereby submit to the venue of the courts situated therein. In any arbitration, suit, action, or legal proceeding relating to this Agreement, the prevailing party shall have the right to recover from the other its costs and reasonable fees and expenses of attorneys, accountants, and other professionals incurred in connection therewith. This Agreement constitutes the complete agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings between the parties. This Agreement may be delivered and executed electronically using electronic signature or by other electronic communication used by the parties and an electronic copy of this Agreement and any signatures affixed hereto shall be considered for all purposes as originals. This Agreement, including any terms and conditions related to the Connectfood Properties, constitutes the entire agreement of the parties with respect to the subject matter hereof, and supersedes any and all prior and contemporaneous agreements, proposals, representations, and understandings of the parties, whether written or oral, with respect to the subject matter hereof. Subject to the foregoing, any modification, extension, or amendment to this Agreement must be in writing and executed by a duly authorized representative of each Party. Except as expressly stated in this Agreement or as provided by applicable law, there are no third-party beneficiaries under this Agreement.