The SGC Group, Inc.
FarApp Referral Agreement
The following is the
complete terms and conditions of the FarApp Referral Agreement, as between The
SGC Group, Inc., and You (herein referred to as “Partner”), the referral
Partner (together, “the Parties”). Please read this agreement in its entirety.
WHEREAS, The SGC
Group, Inc., provides eCommerce integration services for online merchants,
having extensive experience, business relationships, and network contacts
within the online retail industry; stands in a unique position to act as a
strategic partner with The SGC Group, Inc,
WHEREAS, The SGC
Group, Inc. seeks additional customers, and Partner seeks an additional source
WHEREAS this Agreement
contains the terms and conditions that apply to your participation as a
Referral Affiliate in The SGC Group, Inc.’s Referral Program; and
acknowledges that it may participate in the Referral Program only under the terms
and conditions set forth below, and that The SGC Group, Inc. will, in its sole
discretion, determine whether or not to accept Partner into Referral Program.
NOW THEREFORE, in
consideration of the mutual covenants and promises contained in this Agreement,
the receipt and sufficiency of which are hereby acknowledged, the Parties agree
shall mean Partner’s active engagement in the introduction of a Lead to The SGC
shall mean a Lead for which Partner is eligible under the terms and conditions
of this Agreement to be paid a commission because said Lead has become a
customer of The SGC Group, Inc., and from which customer The SGC Group, Inc.
has received payment.
Information” shall mean all data and information of a confidential nature, as
well as information that one party knows or should know that the other party
regards as confidential including, but not limited to, business practices,
software, technical information, future product and service plans,
programming/design techniques or plans, know-how, trade secrets, prospects,
customers, end users, suppliers, development plans or projects, and services.
“Marks” shall mean the
service marks, trademarks, trade names, logos, and trade dress of a party.
“Lead” shall mean a
potential or prospective customer identified by Partner.
“Service” shall mean
any of The SGC Group, Inc. products or services which it offers to Customers.
“Partner” shall mean
you, the business or entity submitting your acceptance of this agreement as an
application for acceptance into the FarApp Referral Program.
shall mean the date that The SGC Group, Inc. notifies Partner that it has
accepted Partner’s Lead as a Commissionable Lead.
“Party” or “Parties”
shall mean The SGC Group, Inc. and/or Partner.
“Agreement” shall mean
this document and its provisions.
“Referral” means the
activity of submitting a Lead to The SGC Group, Inc.
“Qualified Lead” means
a Lead or Referral that was tracked and received by The SGC Group, Inc., which
includes all of the necessary lead data, and also matches the criteria set for
in this Agreement, and has resulted in a commissionable payout.
Rights” means all rights in and to trade secrets, patents, copyrights,
trademarks, as well as any similar rights of any type under the laws of any
governmental authority, domestic or foreign, including rights in and to all
applications and registrations relating to any of the foregoing.
means the provisions of, participation in, and activities of, the terms of this
“Related Entity” means
any entity that, directly or indirectly, controls, is controlled by, or is
under common control with, Partner or The SGC Group, Inc.; where “control”
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management policies of another, whether through the
ownership of voting securities, by contract, as trustee or executor, or
any Mark, link, text, graphic, or reference, to The SGC Group, Inc., FarApp, or
any other Service offered by The SGC Group, Inc., displayed on Partner web
sites or otherwise used by Partner.
Estimate” means an estimated-cost document generated by The SGC Group, Inc.,
and sent to a client or prospect, which outlines the scope-of-work for
customizations, and the estimated cost and time to perform such work.
The term of this
Agreement (“Term”) will begin upon your acceptance by The SGC Group, Inc. into
our Referral Program and shall end when terminated by either party.
3. Acceptance to the
The SGC Group will
notify you upon acceptance into the Referral Program. You will be assigned a
referral Partner ID upon acceptance.
Either party may
terminate this Agreement immediately by giving notice to the other party.
Partner agrees and acknowledges that if Partner breaches any provision of this
Agreement that The SGC Group, Inc. may immediately terminate Partner from
Referral Program. Upon termination of this Agreement, Partner must immediately
cease using any/all of The SGC Group, Inc.’s Advertisements. The SGC Group,
Inc. may terminate this Agreement at any time, with or without cause, effective
immediately upon notice to Partner. Fraudulent or other unacceptable behavior
as defined by The SGC Group, Inc. can result in termination of this Agreement
entirely without notice to, or recourse for, the Partner.
acknowledges and agrees that in order for a Lead to qualify as a Commissionable
Lead, the following must have occurred:
Partner must have
actively participated in the introduction of the Lead to a The SGC Group, Inc.
sales contact; and
Partner must have
timely documented the introduction of the Lead in an email to firstname.lastname@example.org
for review; and
The SGC Group, Inc.
must have reviewed the Lead and accepted the Lead as commissionable (i.e., not
rejected the Lead for any of the reasons stated in Section 5.2 below, or
Partner must have
continued to actively participate in supporting The SGC Group, Inc. in the
sales process with said Lead.
Acknowledges And Agrees That No Commission Will Be Paid To Partner By The SGC
Group, Inc. to Partner for the Referral of a Lead:
that was an existing
customer of the SGC Group, Inc. at the time of the Referral;
with whom The SGC
Group, Inc. was already involved in preliminary or advanced discussions
relating toward the sale of Service to Lead (as of the date of the Referral);
for whom a Referral
has previously been submitted to The SGC Group, Inc. by Partner or any other
which occurred more
than thirty (30) days prior to the Notification Date;
for whom Partner did
not actively participate in the development and/or solicitation of the Lead;
that is a Related
Entity of Partner.
5.3 Each party will,
upon request of the other party, provide the other with all non-confidential
information it has regarding a Lead in order to assist the other party in (i)
verifying the eligibility of the Lead as commissionable; and/or (ii)
successfully soliciting the Lead to purchase The SGC Group, Inc. Services.
5.4 Each party will,
upon request of the other party, in its reasonable discretion, provide the
other party with information regarding its services and/or products. Such
information shall include sales and marketing materials and informal training.
Any training provided under this Section shall be conducted at mutually agreed
times and places and shall be conducted in accordance with the training party’s
6. Payment Terms and
The SGC Group, Inc.
agrees to pay You a commission for every new customer that you refer resulting
in a Commissionable Lead for us.
Payment will be issued
periodically (monthly or quarterly, depending on amount of commission),
provided that your account has reached a minimum of $100.00. Accounts with a
balance of less than $100.00, will automatically roll over to the next payment period
or otherwise will be paid on a quarterly basis. Commissions will be based on
amounts received from Partner’s Commissionable Leads during the period, or
accrued from prior periods. The commission amount shall be 20% of the
subscription fee for the first one year of service, to be recognized upon
payment by customer of the subscription fees. If Professional Services fees
were part of the initial implementation, and if the Professional Services
Estimate was generated after the Notification Date, then 20% of those fees will
accrue to the commission upon payment from customer. Subsequent Professional
Services, which were not included in the initial implementation, are not
commissionable. Professional Services which were estimated prior to the
Notification Date are not commissionable. The one-year term will begin on the
date that the first payment is due from customer, and will include all
subscription fees due for the subsequent 365 days.
The SGC Group, Inc.
has the right to alter the commission fees and payment schedule, with
notification to Partner. Any such alterations will not be retroactive, or alter
the commission rate or duration for Commissionable Leads accepted by The SGC
Group, Inc. prior to such alteration.
You agree to accept
sole responsibility for the development, operation, and maintenance of your
sites, apps, email systems, etc. and for all content that appears on them and
you MUST ensure that all materials posted on your sites are not illegal and do
not infringe on the rights of any person or entity of any kind including, but
not limited to, any/all third party intellectual property rights. You further
agree that your sites do not copy or resemble the look and feel of our sites,
or create the impression that your sites are our sites or a part of our sites.
You agree to submit to us all of the URLs for all sites you plan to use to
promote our sites.
8. Limited License
Each party owns and
shall retain all rights, title and interest in its Marks, names, logos, trademarks,
service marks, copyrights and proprietary technology. This includes, but is not
limited to, those names, logos, trademarks, service marks, copyrights and
proprietary technology currently used or which may be developed and/or used by
it in the future. The SGC Group, Inc. shall own and retain all rights, title
and interest in all names, addresses and other identifying information of
customers visiting our sites (“Customer Information”) which is collected by us.
This includes, but is not limited to, customers who access our sites through
your Links. You fully understand and agree that you shall have no right to
access or use any such Customer Information. The SGC Group, Inc. grants you a
revocable, non-exclusive license to use, reproduce and transmit any Links
provided by us. Any benefits resulting from your use of The SGC Group, Inc.’s
name, logos or trademarks, as incorporated into the Links, are solely for the
benefit of The SGC Group, Inc. and will not create any right, title or interest
for you. You may use only the Links that are provided by us to you, or provided
by you and approved for use by The SGC Group, Inc. You shall not use the Links
in connection with any activity that disparages us or that damages our
reputation in any manner whatsoever. You are strictly prohibited from creating
an impression that there is an association or affiliation between us and you
beyond the arrangement outlined in this Agreement. Partner shall immediately
cease using the Links upon any termination or expiration of this Agreement, and
may not use them prior to acceptance to our Referral Program.
The SGC Group, Inc.
may modify any of the terms and conditions of this Agreement at any time and
without prior notice to you. If the modifications are unacceptable to you, your
only recourse is to terminate this Agreement.
The SGC Group, Inc.
makes no warranties whatsoever including, without limitation, any warranties of
fitness, merchantability, non-infringement, or any implied warranties arising out
of course of performance, dealing or trade usage and makes no representation
that the operation of its sites will be uninterrupted or error-free and will
not be liable for any consequences resulting from any interruptions or errors.
The SGC Group, Inc. disclaims all liability for all materials or content on
The SGC Group, Inc.
hereby authorizes Partner to include in its marketing or product distributions,
marketing materials about The SGC Group, Inc.’s Services, which The SGC Group,
Inc. has prepared and provided to Partner for this purpose. Partner shall not
alter, modify, or otherwise change any material provided to it by The SGC
Group, Inc without prior approval from The SGC Group, Inc. Partner may prepare
marketing material, but use of such material is subject to approval by The SGC
Group, Inc., and may only be used upon receipt of such approval.
12.1 Each Party agrees
not to disclose the other Party’s Confidential Information and to protect its
confidentiality using at least the same degree of care that Party uses to
protect its own Confidential Information, which shall under no circumstances be
less than reasonable care, including not disclosing it to a third party unless
there is a “need to know,” and a written obligation by the third party to
maintain the confidentiality. If a Party receives an order from a court or
other governmental body that requires disclosure of the other Party’s
Confidential Information then the Party receiving the order shall notify the
other Party of the order and shall assist the other Party in seeking an
appropriate protective order in advance of making any such disclosure. The
obligation to protect Confidential Information shall survive the expiration or
termination of this Agreement. Confidential Information may be communicated
orally, in writing or in any other recorded or tangible form. Confidential
Information shall include, but shall not be limited to, any and all information
associated with the other Party’s business and not publicly known, including,
the contents of this Agreement, specific trading information, technical
processes and formulas, source codes, customer lists, prospective customer
lists, names, addresses and other information regarding customers and prospective
customers, product designs, sales, costs, and other unpublished financial
information, business plans and marketing data, and any other confidential and
proprietary information, whether or not marked as confidential or proprietary.
12.2 Exceptions. Information
shall not be deemed to be Confidential Information, and Parties shall have no
obligation with respect to any such information, (i) which: is or falls into
the public domain through no wrongful act or negligence of either Party and is
rightfully received from a third party without restriction and without breach
of the Agreement; (ii) which is approved for release by written authorization
of an officer of either Party or is already in the other Party’s possession as
evidenced by its records and is not the written guidelines that The SGC Group,
Inc. may provide to Partner from time to time; (iii) not, at any time during
the term of this Agreement, register or cause to be registered The SGC Group,
Inc. Marks or any trademarks, marks or trade names confusingly similar to The
SGC Group, Inc. Marks; and (iv) not use The SGC Group, Inc. Marks in any manner
that is likely to cause confusion, mistake, or deception. Partner will
reproduce all copyright, trademark and other notices on any copies of The SGC
Group, Inc. promotional materials created or distributed by Partner.
13. This Agreement
Both parties agree
that the terms and conditions of this Agreement shall be treated as
Each party agrees that
it will not solicit the engagement and/or employment of the services of any of
the employees and/or contractors of the other Party (either directly or through
agents), without written permission of the other Party, during the term of this
Agreement and any extension thereof and continuing for a period of one (1) year
following its expiration or termination.
15. Reservation of
that The SGC Group, Inc. holds and retains all worldwide right, title and
interest in and to its Marks and The SGC Group, Inc.’s promotional materials,
and that all use of The SGC Group, Inc. Marks and The SGC Group, Inc.
promotional materials by Partner will inure to the benefit of The SGC Group, Inc.
Further, Partner will (i) not assert any ownership interests in or contest the
validity of The SGC Group, Inc. Marks; (ii) comply with written guidelines that
The SGC Group, Inc. may provide to Partner from time to time; (iii) not, at any
time during the term of this Agreement, register or cause to be registered The
SGC Group, Inc. Marks or any trademarks, marks or trade names confusingly
similar to The SGC Group, Inc. Marks; and (iv) not use The SGC Group, Inc. Marks
in any manner that is likely to cause confusion, mistake, or deception.
As between the parties, The SGC Group, Inc.
acknowledges that Partner is the sole and exclusive owner of the Partner Marks,
and Partner acknowledges that The SGC Group, Inc. is the sole and exclusive
owner of its Marks.
Each party agrees to
defend, indemnify and hold harmless the other Party and their respective
officers, directors and employees from and against any liabilities, damages,
losses, costs, expenses or settlement fees, including reasonable attorneys’
fees and costs, arising out of any claim, suit, proceeding, demand or action
brought by a third party against the other Party as a result of the
indemnifying Party’s alleged breach of its representations, warranties or
covenants provided in this Agreement or by gross negligence, bad faith or willful
misconduct. Any Party seeking indemnification under this Section will promptly
notify the indemnifying Party in writing and provide the indemnifying Party
with reasonable information, assistance and cooperation in defending the
lawsuit or proceeding at the indemnifying party’s expense.
17. Equitable Relief
Partner agrees that
money damages would not be a sufficient remedy for a breach of the terms and
obligations of this Agreement. Accordingly, in addition to all other remedies
The SGC Group, Inc. may have, The SGC Group, Inc. shall be entitled to specific
performance and injunctive or other equitable relief as a remedy for any breach
of the confidentiality and other obligations of this Agreement. The parties
agree to waive any requirement for a bond in connection with any injunctive or
other equitable relief.
The waiver or failure
of either Party to exercise any right provided for in this Agreement will not
be deemed a waiver of any future rights under this Agreement.
Partner warrants that
they have unrestricted power and authority to execute and deliver the Agreement
and to carry out the transactions contemplated hereby. Partner warrants that
the execution of this Agreement and the performance of any work and delivery of
any services will not conflict with or violate any commitment, agreement or
understanding Partner has or will have with any other person or entity and
there is nothing that will prevent Partner from performing its obligations
under the terms and conditions imposed on it by the Agreement. The Parties
represent and warrant that the Agreement has been duly authorized by all
necessary corporate action and constitutes a valid obligation, binding and
enforceable in accordance with the terms hereof.
20. DISCLAIMER OF
EXCEPT FOR THE
WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, THE PARTIES SPECIFICALLY
DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
21. LIMITATION OF
UNDER NO CIRCUMSTANCES
WILL THE SGC GROUP, INC. BE LIABLE TO PARTNER FOR INDIRECT, INCIDENTAL,
PUNITIVE, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH DAMAGES ARE
FORESEEABLE OR THE SGC GROUP, INC. HAS BEEN ADVISED OR HAS CONSTRUCTIVE
KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM THE SGC GROUP,
INC.’S PERFORMANCE OR NON-PERFORMANCE UNDER THIS AGREEMENT OR THE OPERATION OF
THE SGC GROUP, INC.’S BUSINESS. THE SGC
GROUP, INC.’S AGGREGATE LIABILITY TO THE PARTNER ARISING FROM OR RELATING TO
THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN
CONTRACT, TORT, INDEMNITY OR OTHERWISE), WILL BE LIMITED TO AN AMOUNT EQUAL TO
THE FEES THAT ARE OWED TO YOU BY THE SGC GROUP, INC. UNDER THE TERMS OF THIS
AGREEMENT. EXCEPT FOR BREACHES OF SECTIONS 7 (CONFIDENTIALITY) AND 10
(TRADEMARK LICENSE), NEITHER PARTY WILL BE LIABLE FOR ANY LOSS OF USE, LOSS OF
DATA, INTERRUPTION OF BUSINESS, DOWNTIME, LOST PROFITS, OR ANY INDIRECT,
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE
FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT PRODUCT
LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF
DAMAGES. EXCEPT FOR BREACHES OF SECTIONS 7 (CONFIDENTIALITY) OR 10 (TRADEMARK
LICENSE), IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER UNDER THIS
AGREEMENT EXCEED THE PAYMENTS PAID BY THE SGC GROUP, INC. TO PARTNER DURING THE
PRECEDING TWELVE MONTHS. THE PARTIES ACKNOWLEDGE AND AGREE THAT THIS SECTION IS
AN ESSENTIAL ELEMENT OF THE AGREEMENT AND THAT IN ITS ABSENCE, THE ECONOMIC
TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. THIS SECTION IS
SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
22. Governing Law;
This Agreement is to
be construed in accordance with and governed by the internal laws of the State
of California, without giving effect to any choice of law rule. Client agrees
that courts located in Los Angeles County, California, shall have exclusive
jurisdiction and venue of any disputes arising from this Agreement. Parties
warrant that they will conduct their business in accordance with all applicable
State and Federal laws.
23. Recovery of Fees
by Prevailing Party
If any legal action,
including, without limitation an action for arbitration or equitable relief, is
brought by one Party against the other Party relating to this Agreement or the
breach or alleged breach hereof, the prevailing Party in any final judgment or
arbitration award, or the non-dismissing Party in the event of a voluntary
dismissal by the other Party instituting the action, will be entitled to
reimbursement from the other Party for the full amount of all reasonable
expenses, including all court costs, arbitration fees and actual attorneys’
fees paid or incurred in good faith.
24. Force Majeure
Neither Party shall be
liable in damages or have the right to terminate this Agreement for any delay
or default in performing hereunder if such delay or default is caused by conditions
beyond its control including but not limited to acts of God, government
restrictions, wars, insurrections and/or any other cause beyond the reasonable
control of the party whose performance is affected including mechanical,
electronic or communications failure.
If the application of
any provision of this Agreement to any particular facts or circumstances is
held to be invalid or unenforceable by an arbitration panel or a court of
competent jurisdiction, then the validity and enforceability of such provision
as applied to any other particular facts or circumstances and the validity of
other provisions of this Agreement will not in any way be affected or impaired
thereby, and such provision will be enforced to the maximum extent possible so
as to effect the intent of the parties and reformed without any further action
by the parties to the extent necessary to make such provisions valid and
26. No Joint Venture
Nothing contained in
this Agreement shall create or be construed to create any partnership, joint
venture, agency, franchise, employment or fiduciary relationship between the
parties. The Parties to this Agreement are independent contractors. Neither
Party is an agent, representative or Related Entity of the other Party. Neither
Party shall have any right, power or authority to enter into any agreement for,
or on behalf of, or incur any obligation or liability of, or to otherwise bind,
the other Party. This Agreement shall not be interpreted or construed to create
an association, agency, joint venture or partnership between the Parties or to
impose any liability attributable to such a relationship upon either Party.
acknowledges that this Agreement does not create an exclusive agreement between
the parties. Each party shall have the right to recommend similar products and
services of third parties and to work with other parties in connection with the
design, sale, installation, implementation and use of similar services and
products of third parties. Notwithstanding the foregoing, Partner agrees that
once it establishes a Commissionable Lead with The SGC Group, Inc., it will not
refer a direct competitor of The SGC Group, Inc. to such Commissionable Lead.
The parties agree that
all notices that may or must be given under the provisions of this Agreement
shall be in writing and delivered by email or facsimile or by hand-delivery.
Notices to The SGC Group, Inc. shall be directed to email@example.com. Notices
to Partner shall be directed to the contact information provided by Partner to
The SGC Group, Inc. All notices shall be effective the next business day after
29. Assignment. This
Agreement shall inure to benefit and bind the Parties hereto, their successors
and assigns, but neither party may assign this Agreement without written
consent of the other, except such consent is not required to the successor of
all or substantially all of the assignor’s business or assets. Partner shall
have no right to assign or otherwise transfer this Agreement, or any of its
rights or obligations hereunder, to any third party without The SGC Group,
Inc’s prior written consent, to be given or withheld in The SGC Group, Inc’s
30. Entire Agreement
The provisions of this
Agreement constitute the entire agreement between the Parties and shall
supersede all prior oral or written agreements or understandings relating to
this subject matter.
By clicking the “I
Agree” button below, you are submitting the application as a referral Partner
to The SGC Group, Inc., and you are deemed to have agreed to be bound to the
terms and conditions set out in this Agreement.
As a courtesy please
be advised that the Federal Trade Commission in the United States (“FTC”) has
guidelines for governing endorsements and testimonials. These rules are aimed
at increasing transparency between endorsers and consumers. As members of the
Partner Program with FarApp you receive compensation for the affiliate
referrals you make to the company. This may establish a “material connection”
according to FTC rules, which creates an obligation to provide disclosure to
Full compliance with
these guidelines requires that information be provided to your consumers
clearly and conspicuously, outlining that you are being compensated for
referring clients to FarApp. For further information you may refer to the
statement released by the FTC regarding these guidelines.