Welcome to the Clyde Technologies, Inc. (“Clyde,” “us,” “we,” “our”) referral program.
Please read these Referral Terms and Conditions (“Agreement”) carefully before signing up for our referral program. By signing this Agreement or otherwise signifying your acceptance to this Agreement, you are forming a binding contract with Clyde. By registering for the referral program, you are confirming that you understand this Agreement, and that you accept all of its terms and conditions. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind the entity to this Agreement. This Agreement will be effective as of the day you agree to it (the “Effective Date”). We may change the terms of this Agreement at any time for any reason by posting those changes here and, if the changes are material as determined in our discretion, sending you an email notice; provided, however, that any changes will not affect payments already earned or due as of the date of the change, or where the measuring period for any fees began prior to the date of the change. This Agreement includes dispute resolution through arbitration, for which you have the opportunity to opt-out. Please read this Agreement in full.
“Clyde Admin Fee Revenue” means the total gross amount of admin fees actually collected by Clyde from Referred Merchants for the sale of Clyde’s product coverage program, less the sum of the following: (a) refunds; (b) cancellations; and (c) other payment processing related expenses incurred by Clyde in connection with the Referred Merchants’ transactions. For clarity, Clyde Admin Fee Revenue excludes any amounts paid to Clyde by such Referred Merchants related to any other services or offerings.
“Merchant” means a party who offers products and services online.
“Referral” means a warm introduction made by Company to Clyde to a Merchant (through Company’s sole efforts) with the Merchant’s consent and including sufficient information to permit Clyde to contact and/or transact with Merchant.
“Referred Merchant” is a Merchant who, within 90 days of a Referral, enters into an agreement with Clyde to offer Clyde’s product coverage program to that Merchant’s end users. Referred Merchants exclude, however, any Merchant that (1) contacted Clyde prior to the warm introduction by Company; (2) Clyde contacted prior to the warm introduction by Company; (3) Clyde, in its good faith discretion, determines that Company did not make Clyde’s initial introduction to the Merchant; and (4) that has a pre-existing business relationship with Clyde, or that has affiliates who have pre-existing business relationships with Clyde.
2. Revenue Share.
For each Referred Merchant, Clyde will pay Company a commission on the first 12 months of the Referred Merchant’s use of the Clyde product coverage program as follows:
Referred Merchant's agreement with Clyde for the Clyde product coverage program
Clyde Admin Fee Revenue: 20%
The percentages set forth directly above are the “Referral Fees.”
Clyde will calculate Referral Fees on a calendar-quarter basis, and will pay the Referral Fees within 60 days following the end of each calendar quarter according to a payment method mutually agreed by Clyde and Company. Each payment will be accompanied by a report showing how Clyde calculated the Referral Fees for the applicable payment period.
3. Practices around Referrals.
Company is not authorized to make any statement, representation or warranty to Merchants about Clyde’s products and services not contained in the Marketing Materials (defined below). Company will comply with all applicable laws, rules, and regulations in its performance of this Agreement. For clarity, nothing in this Agreement obligates Clyde to enter into a relationship with any Merchant.
Any marketing materials provided by Clyde (“Marketing Materials”), and any of Clyde’s Confidential Information (defined below) are the sole and exclusive property of Clyde. Clyde grants Company a limited, revocable, non-exclusive, non-transferable, non-sublicenseable license to reproduce, display and distribute the Marketing Materials (including Clyde’s name and logo, solely as included within the Marketing Materials) for the sole purpose of facilitating Referrals. Any other use of Clyde’s name, logo or other trademarks is subject to Clyde’s prior approval in each instance. Any and all goodwill generated from the use of Clyde’s name, logo and other trademarks will inure to Clyde’s benefit. There are no implied licenses in this Agreement.
4. Representations and Warranties.
Each Party represents and warrants that it has the power to execute, deliver and perform this Agreement, and this Agreement is duly authorized, and will not violate any provisions of law, or conflict with any other agreement to which such party is subject.
5. Indemnity; Limitation of Liability.
Each party will indemnify and defend the other party and any of its related entities and the directors, officers, employees, subcontractors and agents thereof (“Indemnified Party”), with respect to any third party claim, demand, cause of action, debt or liability, including reasonable attorneys’ fees, to the extent that such action is based upon or arises out of: (a) where Company is the indemnifying party, (i) a breach of Company’s obligations under this Agreement, including any statement made by Company regarding Clyde’s products and services not contained in the Marketing Materials and (ii) Company’s use of the Marketing Materials in a manner not authorized by this Agreement; and (b) either party’s gross negligence or willful misconduct (each, a “Claim”).
To obtain the indemnification provided above, an Indemnified Party must promptly provide Company with written notice of any Claim. The Indemnified Party may, at its own expense, assist in the defense if it so chooses, provided that the indemnifying party will control such defense and all negotiations relative to the settlement of any such Claim, provided that any settlement binding on the Indemnified Party is subject to the Indemnified Party’s prior, written consent.
CLYDE WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BASED IN CONTRACT, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF CLYDE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLYDE’S TOTAL LIABILITY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY), OR OTHERWISE, ARISING OUT OF OR RELATING TO THE AGREEMENT WILL NOT EXCEED THE GREATER OF (1) $1,000 OR (2) THE TOTAL REFERRAL FEES PAID OR PAYABLE TO COMPANY BY CLYDE UNDER THE AGREEMENT IN THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE RELEVANT CLAIM.
Each party may receive Confidential Information from the other party. "Confidential Information" means any information that, given the nature and circumstances surrounding disclosure, would reasonably be understood to be considered confidential. Clyde’s Confidential Information includes any customer or Merchant information, business operations, policies, procedures and techniques, any reports provided under this Agreement, "Confidential Information" does not include, however, information which, prior to disclosure, was already in the recipient party’s possession; is or becomes generally available to the public through lawful means, other than as the result of unauthorized disclosure by the recipient party or its representatives; becomes available to a recipient party without confidential or proprietary restriction by a third party who rightfully possesses the information without confidential or proprietary restrictions; or the recipient party can demonstrate was developed by such recipient Party without reference to the Confidential Information of the other party. Except as otherwise specifically provided in this Agreement, each party agrees that it will not publish, communicate, divulge, or disclose to any person or entity any Confidential Information of the other party, except in the performance of the terms of this Agreement.
Each party will not use any Confidential Information of the other party except (i) for the benefit of the other party, and (ii) as necessary to fulfill its obligations or exercise its rights under this Agreement, and only for such purposes and only for the time that it is necessary to do so, except to the extent it is otherwise permitted under this Agreement. Each party will take commercially reasonable security precautions, at least as great as the precautions it takes to protect its own Confidential Information and as may be required by applicable laws, with respect to the Confidential Information of the other party which it receives and will disclose such Confidential Information only on a need to know basis and only to its employees, contractors, subsidiaries or agents who are obligated to treat such Confidential Information in a manner consistent with all the obligations of this Agreement. Each party will promptly notify the other party upon discovery of any loss or unauthorized disclosure of the Confidential Information of the other party.
In the event that the recipient of Confidential Information is requested by a governmental agency or becomes legally compelled to disclose any Confidential Information of the other party, then such recipient party will provide the disclosing party with prompt written notice of such request(s) to enable the disclosing party to seek a protective order to protect and preserve the confidential nature of the Confidential Information. In such event, each party will furnish only that portion of the Confidential Information which is legally required and will exercise reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to the Confidential Information that is disclosed.
7. Term; Termination.
This Agreement commences on the Effective Date and continues until it is terminated as set forth in this Section. Either Party may terminate this Agreement at any time, with or without cause, effective immediately upon written notice to the other party. Upon expiration or termination of this Agreement: (a) each party will return to the other party all property of the other party in its possession or control (including all of the other party’s Confidential Information); (b) Company will immediately cease use of any Marketing Materials on any website or otherwise; (c) all rights granted to Company will immediately terminate; and (d) any Referral Fees associated with a Referred Merchant (who, for clarity, became a Referred Merchant prior to termination or expiration) will be paid by Clyde in accordance with this Agreement.
8. Governing Law, Jurisdiction and Dispute Resolution.
New York law governs this Agreement. Any disputes arising under this Agreement must be adjudicated in the state and federal courts in New York, New York, except for claims subject to arbitration as set forth below.
Any controversies, claims or disputes arising out of or relating to this Agreement (excluding a claim for injunctive relief related to either infringement of a party’s intellectual property rights or a breach of confidentiality obligations) must be resolved only by confidential arbitration before a single arbitrator by the American Arbitration Association (“AAA”) pursuant to its Revised Commercial Rules (2013), currently available at http://go.adr.org/commercialrules, as such rules may be revised by the AAA. The arbitration proceedings will be held in the English language in New York, New York. The arbitrator appointed pursuant to this Section may award costs of the hearing in addition to having the authority to resolve the controversy, claim or dispute, but under no circumstances is the arbitrator authorized or empowered to award special, punitive, or multiple damages against either party. The decisions of the arbitrator will be binding and conclusive upon all parties and judgment upon any award rendered by the arbitrator may be entered by any court of competent jurisdiction.
If Company wishes to opt-out of using arbitration as a dispute resolution mechanism, Company must send, within thirty (30) days of the Effective Date, a notice to Clyde Technologies, Inc. Arbitration Opt-out, Clyde Technologies, Inc., 579 Broadway, 2C NY, NY 10012.
Arbitration will proceed solely on an individual basis. Company may not aggregate any claims with third parties to be arbitrated or litigated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to claims between Company and Clyde alone. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
We may give notices to you by email to the address you supply, by courier, or U.S. Mail. Our notice to you by email will be effective on the date the email is sent by us; notice sent by courier will be effective on the date delivered; and notice sent by U.S. Mail will be effective three days after the date of mailing.
You may give notices to us by email addressed to email@example.com, or by courier or U.S. Mail addressed to Clyde Technologies, Inc., Attention; Company Services Department, 579 Broadway, 2C NY, NY 10012 with a copy to Clyde Technologies, Inc., Attention: Corporate Secretary, 579 Broadway, 2C NY, NY 10012. Your notices to us by email will be effective on the date received; your notices to us by courier will be effective on the date delivered; and your notices to us sent by U. S. Mail will be effective three days after the date of mailing.
Either party may change its addresses for notices by giving notice to the other party of the new addresses in accordance with this Section.
During the term of this Agreement and for one year following expiration of termination of this Agreement, Company will not cause or permit any of its employees, agents, subsidiaries, sales persons or others to solicit, induce, or otherwise cause any Referred Merchant or any other Merchant that was the subject of a Referral to terminate the Merchant's relationship with Clyde or use any services that compete with Clyde’s services.
11. Miscellaneous Provisions.
Clyde may identify Company as part of its referral partner program and as such, may use Company’s name and logo on its website, in press releases and marketing materials.
Neither party may bind or attempt to bind the other party, or represent that the other party is bound, to any agreement, commitment or understanding without such party’s express written consent given in advance, and any attempt to do so will be null and void. The parties’ relationship to each other in all matters relating to the performance of this Agreement is that of independent contractors. Nothing in this Agreement creates a relationship of joint venturers or employer-employee.
This Agreement is the entire agreement of the parties with respect to the subject matter hereof, and supersedes and cancels all prior and contemporaneous agreements, claims, representations, and understandings of the parties in connection with that subject matter. Either party’s failure to require the performance of the other party of any provision of this Agreement will not affect the right of such party to require performance under that provision at any other time. Nor will waiver by a party of a breach of any term of this Agreement be taken or held to be a waiver of the provision itself.
Clyde may freely assign this Agreement. Company may not assign this Agreement without Clyde’s prior, written consent.
If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions. This Agreement may be executed in electronic counterparts.