This Referral Agreement (“Agreement
”), effective as of the date of the approval of the Program Application (“Effective Date
”), is entered into by and between Madefor LLC (“Madefor
”) and the individual or entity executing this Agreement (“Referral Source
1. Term: This Agreement will commence on the Effective Date and will continue until terminated as set forth herein (“Term”).
2. Product(s) to be Featured in Posts: The Madefor Program and its requisite components, products and/or services. Such products, and the pricing therefor, subject to modification by Madefor in its sole discretion.
a. Referral Source shall be responsible for all costs related to the creation and publication of any and all posts, images, graphics, audiovisual works, or other materials or content created by Referral Source hereunder (collectively, “Posts”). Madefor reserves the right to monitor Referral Source’s Posts at any time.
b. Referral Source hereby grants to Madefor (and its designees) a non-exclusive, transferable (without consent), sublicensable (without consent and through multiple tiers of sublicensees), perpetual, irrevocable, fully-paid, royalty-free and worldwide right and license, during and after the Term, to use, reproduce, distribute, perform, publicly display, and make derivative works of the Posts (in whole or in part), in any and all media, whether now known or hereafter developed, including any digital or other social media platform, solely in connection with Madefor’s advertisement and promotion of itself and its products and services. Without limiting the foregoing, Madefor may boost, amplify or otherwise promote any Post in Madefor’s sole discretion.
4. Referral Codes:
a. Madefor will provide Referral Source in writing (email or other digital communication to suffice) with URLs, offer codes, or other similar tracking mechanisms for use in connection with its activities hereunder (each, a “Referral Code”) and instructions for use of same. Referral Source will not use, or cause or permit the use of, Referral Codes other than in accordance with Madefor’s instructions.
b. Madefor reserves the right, in its sole discretion, for any reason or for no reason, to cancel, deactivate, refuse to honor, or otherwise invalidate (each, “Cancel”) any Referral Code (e.g., if a Referral Code is posted on a coupon site).
c. In Madefor’s sole discretion, certain Referral Codes may only be used via private channels (e.g., not via publicly facing pages, sites, profiles, etc.), in which event Referral Source may only distribute same via direct message, text, email blast, or in person events.
5. Compensation: For each Pay Upfront, Pay As A Group Plan, or Introductions Kit purchased by a Qualifying Consumer during the Term, Madefor shall pay to Referral Source ten percent (10%) of Net Revenue (“Referral Fee”). “Qualifying Consumer” means a consumer: (a) who has no prior business relationship with Madefor; and (b) who Madefor, in its sole discretion, determines to have resulted from advertising, marketing and/or promotional efforts hereunder (e.g., through use of a valid Referral Code). “Net Revenue” means the gross revenue actually received by Madefor from the Qualifying Consumer for the purchase of a Pay Upfront, Pay As A Group Plan, or Introductions Kit, minus taxes, returns, chargebacks, disputed amounts, discounts, commissions paid to third parties, credit card or other payment processing fees, shipping and other distribution costs, and other standard deductions. For the avoidance of doubt, Referral Fees do not apply to, and Madefor shall have no obligations to pay to Referral Source any amounts for, any purchases of products or services other than the Pay Upfront, Pay As A Group Plan, or Introductions Kit. Unless otherwise specified by Madefor, Referral Fee payments shall be made within fifteen (15) days following the closing of sign-ups for the applicable Pay Upfront, Pay As A Group Plan, or Introductions Kit. Referral Source shall be responsible for any taxes levied on Referral Fee amounts paid hereunder, excluding any taxes on the income of Madefor. Madefor reserves the right to adjust payments, including retroactively, for purchases deemed by Madefor in its sole discretion to have resulted from fraud, manipulation, or misuse of Referral Codes, automated means, or other unauthorized activity.
6. Madefor Marks and Materials: Madefor grants to Referral Source a limited, revocable, non-exclusive right and license to use the trade names, trademarks, service marks, and logos specified by Madefor, as set forth in and displayed on materials provided by Madefor (“Madefor Marks”), as well as any such materials, for use solely in connection with fulfilling Referral Source’s obligations under this Agreement. All uses of the Madefor Marks will comply with Madefor’s branding requirements. Should Madefor object to any use of a Madefor Mark or any such materials by Referral Source, Madefor may revoke Referral Source’s rights thereto and Referral Source will promptly cease such use. Madefor will own all right, title and interest in and to any such materials and the Madefor Marks, and all uses of the Madefor Marks will inure to the benefit of Madefor.
7. Warranties: Referral Source represents and warrants that: (a) the Posts, as well as Madefor’s use thereof, will not violate the terms of any applicable social media platform, and will not violate or infringe any copyright, patent, trademark, right of publicity or privacy, or any other proprietary right of any person; and (b) Referral Source’s actions hereunder will comply with applicable laws,
rules, regulations and guidelines (including the Federal Trade Commission’s Guide Concerning the Use of Endorsements and Testimonials in Advertising). Without limiting the foregoing, each Post shall be accompanied by (i) a clear and conspicuous disclosure of the paid nature of Referral Source’s relationship with Madefor or (ii) either the disclosure in the foregoing clause (i) or “#sponsored,” “#Madefor-ambassador” or another hashtag specified by Madefor. Referral Source agrees to promptly edit (or take down) any Post as requested by Madefor.
8. Referral Source Commitments:
a. Referral Source agrees that: (i) Referral Source will not malign or disparage Madefor or its products and services; (ii) Referral Source will not advertise or promote, directly or indirectly, any competitor or any competitive products or services; and (iii) Referral Source will refrain from acting in an unprofessional manner or committing any act or becoming involved in any situation that involves criminal misconduct or an act of moral turpitude, regardless of whether information relating to any such act becomes public or whether any civil or criminal proceedings are instituted or sanctions imposed, or any federal, state, or local investigative proceedings are instituted or commenced in connection with such acts.
b. Referral Source will not, nor will Referral Source cause or permit any third party to: (i) bid on any Madefor Marks, including any variations or misspellings thereof for search- or content-based campaigns on Google, MSN, Yahoo, Facebook or any other network; (ii) use any Madefor Marks in sequence with any other keyword; (iii) use any Madefor Marks in any ad title, ad copy, display name or as the display URL; (iv) direct link to any Madefor site or other digital destination from any pay-per-click ad or use redirects that yield the same result (all links used by or on behalf of Referral Source must be directed to an actual page maintained by Referral Source); or (v) bid in any manner appearing higher than Madefor for any search term in any auction style pay-per-click advertising program.
9. Indemnification: Referral Source agrees to indemnify and hold harmless Madefor from and against any and all losses, liabilities, claims, costs, damages and expenses (including reasonable attorneys’ fees) related to any claim arising out of or related to: (a) Referral Source’s acts or omissions hereunder; and/or (b) an actual breach of Referral Source’s representations, warranties and/or obligations set forth herein.
10. General Terms:
a. Madefor may terminate this Agreement immediately upon written notice (email or other digital communication to suffice), for any reason or for no reason. Without limitation, Madefor may take the following into account in any such determination: (i) inappropriate advertisements (e.g., false claims, misleading hyperlinks, etc.); (ii) spamming (mass email, mass newsgroup posting, etc.); (iii) advertising on sites containing or promoting illegal activities; (iv) offering rebates, coupons, or other form of compensation as an incentive; (v) self-referrals, fraudulent transactions, suspected fraud; (vi) keyword bidding; and (vii) lack of conversions.
b. Referral Source may terminate this Agreement (i) upon 45 days’ written notice (email or other digital communication to suffice), for any reason or for no reason, or (ii) immediately upon written notice (email or other digital communication to suffice) following any unremedied failure of Madefor to make undisputed Referral Fee payments hereunder.
c. The following Sections will survive the termination hereof: 3.b, 5, 6 (the final sentence), 9, and 10.
d. Referral Source may not assign, transfer, or delegate any rights, duties or obligations under this Agreement, in whole or in part, to any person or entity without the prior written approval of Madefor. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties hereto, and permitted successors and assigns.
e. MADEFOR WILL NOT BE LIABLE TO REFERRAL SOURCE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF MADEFOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AS A RESULT OF ANY ACT, OMISSION, BREACH OR ALLEGED BREACH OF ANY REPRESENTATION, WARRANTY OR OBLIGATION HEREUNDER. WITHOUT LIMITING THE FOREGOING, MADEFOR’S TOTAL AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED $1,000 USD.
f. Referral Source’s relationship with Madefor is that of an independent contractor, and nothing in this Agreement is intended, or should be construed, to create a partnership, agency, joint venture or employment relationship with Madefor. For the avoidance of doubt, Referral Source shall not be entitled to any benefits provided to employees or other representatives of Madefor.
g. This Agreement shall be governed by the laws of the State of California, other than such laws, rules, regulations and case law that would result in the application of the laws of a jurisdiction other than the State of California. In the event of any dispute relating to this Agreement or the relationship between the parties contemplated hereunder, the parties agree to submit to the exclusive personal jurisdiction of the state and federal courts located in Los Angeles County. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior written and oral agreements between the parties regarding the subject matter of this Agreement. No provision of this Agreement may be waived except by a writing executed by the party against which the waiver is to be effective. A party’s failure to enforce any provision of this Agreement shall neither be construed as a waiver of the provision nor prevent the party from enforcing any other provision of this Agreement. No provision of this Agreement may be amended or otherwise modified except by a writing signed by the parties to this Agreement. The terms of this Agreement are confidential and shall not be disclosed to any third party not under an obligation to maintain the confidentiality thereof.