TIPALTI REFERRAL AGREEMENT
This Tipalti Referral Agreement and the Tipalti Order Form if applicable, (collectively “Agreement”) is entered into by and between Tipalti, Inc., a Delaware company, having its principle place of business at 1810 Gateway Drive, Suite 300, San Mateo, CA 94404, USA (“Tipalti”), and you (“you” or “Referral Partner”), the entity or individual named on the Order Form (together “the Parties”). This Agreement is Effective on the date it is signed by the Parties, or on the date the Order Form which incorporates in this Agreement is signed by the Parties, whichever is applicable.
1. Referral Program Requirements.
The Referral Program allows you to refer customers to Tipalti and receive a revenue share, as specified in this Agreement, as long as the following conditions are satisfied:
a. Initial Referral Email:
Referral Partner shall refer new customers to Tipalti by sending Tipalti an email to [email protected] (“Referral Email”). The Referral Email to Tipalti shall include the following information:
- The name of the business,
- The type of business, and
- The address in which the business is located.
b. Tipalti Approval:
Tipalti will respond to the Referral Email by either accepting or declining the referral, for reasons such as Tipalti is already engaged with the business, Tipalti does not serve the type of business, or any other reason in Tipalti’s sole discretion. A lack of response by Tipalti shall be considered a decline. However, in such an event, you are encouraged to follow-up with your Tipalti contact to ensure the Referral Email was received.
c. Introduction Required:
Once Tipalti approves the Referral, you will be required to provide Tipalti information Tipalti reasonably requests, and a warm introduction (via phone conference call and/or an in-person meeting), with a representative from the business who is interested in learning more about Tipalti and has the power to decide whether to procure the Tipalti Services (“Warm Introduction”).
d. Referred Customer:
Each customer referred to Tipalti pursuant to this process shall become a Referred Customer. In order to remain a Referred Customer, the Referred Customer must begin conversations with Tipalti within 2 months of the Warm Introduction, and must remain in conversations with Tipalti until a Tipalti Order Form is signed by the Referred Customer. If there is a two-month break in communications between the Referred Customer and Tipalti, then the customer will no longer be a Referred Customer. Additionally, to remain a Referred Customer, the customer must make their first payment using the Tipalti Services within 3 months of signing the Tipalti Order Form.
2. Revenue Share.
a. Referral Fees and Payments:
With respect of each Referred Customer, for the first twelve (12) months during which it procures Tipalti Services, Tipalti shall pay Partner 5% of the Net Revenue (“Referral Fees”) earned by Tipalti from the Referred Customer. Net Revenue means the platform and transaction fees, minus related costs and expenses, as calculated by Tipalti. Without limitation, Net Revenue does not include set-up fees, integration fees and other one-time fees (other than platform fees).
Within 30 days of the end of each calendar quarter, Tipalti will send you a summary of the revenues collected from each Referred Customer and the amount owed to you as Net Revenue (“Quarterly Report”). Upon receipt, you will issue Tipalti an invoice for the amount specified by Tipalti in the Quarterly Report. Tipalti shall pay the invoice amount within 30 days of receipt. In the event that Tipalti does not send you a Quarterly Report, it is your responsibility to contact Tipalti at [email protected] and request your Quarterly Report.
b. Duration of Referral Fees:
Referral Fees above shall be payable subject to the foregoing and only if: (a) the customer becomes and remains a Referral Customer prior to the termination or expiration of this Agreement; or (b) Referral Partner is not in default hereunder or under any other agreement with Tipalti or any of its affiliates or has not been sent a notice of breach and opportunity to cure by Tipalti; or (c) no regulatory agency, bank or other entity has authority over Tipalti or Referral Partner has intervened in any way to prevent the payment of Referral Fees or; (d) Tipalti is continuing to receive its own revenue in respect of Referred Customers; or (e) Referred Customers are not in default of their obligations under their agreements with Tipalti, or Tipalti has terminated this Agreement for cause.
3. Referral Partner Marketing.
In marketing the Tipalti Service, you will: (i) identify yourself by your company name and ensure that you are not speaking on behalf of or giving the impression that you represent Tipalti, (ii) identify yourself as a “Referral Partner” for Tipalti, (iii) portray the Tipalti Service accurately, and (iv) strictly adhere to any Tipalti branding or marketing requirements or guidelines as may be communicated to you from time to time. Further, you represent and warrant that all your marketing activities relating in any way to the Tipalti Service shall comply with applicable laws, regulations, industry self-regulatory standards (including applicable behavioral advertising standards), and best practices. At any time, with the provision of written notice to you, Tipalti may require you to refrain from making new referrals and representing that you are a Tipalti Referral Partner.
4. Exclusive Provider.
Referral Partner will not directly or indirectly, integrate or endorse any supplier-payment systems or other product similar to or competitive with the Tipalti Services, nor will they assist in any such competing product to be offered to its customers or other business relations.
5. Relationship of Parties.
Referral Partner and Tipalti agree that in performing their responsibilities pursuant to this Agreement they are in the position of independent contractors. Nothing in this Agreement or the parties’ relationship shall be construed to give either party the power to direct and control the day-to-day activities of the other. The general conduct of work performed by Referral Partner and its representatives under this Agreement shall be under Referral Partner’s sole control. Referral Partner further understands and agrees that Referral Partner shall be fully responsible for all tax obligations related to amounts received hereunder. This Agreement is not intended to create, nor does it create and shall not be construed to create, a relationship of partnership or joint venture or agency or any association for profit between Referral Partner and Tipalti. Referral Partner is not authorized hereunder to hold itself out as an agent of Tipalti or any of its suppliers or to inform or represent to any person that Referral Partner has authority to bind or obligate Tipalti or to otherwise act on behalf of Tipalti. Referral Partner shall not make any representation or warranty, or create any liability or potential liability on behalf of Tipalti. All expenses and disbursements, including those for travel and maintenance, entertainment, training, office, employees, source deductions, taxes, employee taxes or remittances, clerical and general selling expenses that may be incurred by Referral Partner in connection with this Agreement shall be borne wholly and completely by Referral Partner, and Tipalti shall not be in any way responsible or liable therefore. Except as otherwise provided, each party shall bear its own administrative costs and overhead expenses arising out of its performance of this Agreement.
6. Confidential Information.
Each party acknowledges that it may directly or indirectly disclose Confidential Information to the other party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information. Each party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement. Except as otherwise contemplated by this Agreement, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this section shall survive any termination of the Agreement.For the purposes of this Agreement, “Confidential Information” means all proprietary, secret or confidential information or data relating to either party and its affiliates, operations, employees, products or services, clients, customers or potential customers. Confidential Information shall include customer lists, cardholder account numbers, pricing information, computer access codes, instruction and/or procedural manuals, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by law. Without limitation, information relating to Tipalti Services accounts and agreements with Tipalti of Referred Customers shall be the exclusive property and Confidential Information of Tipalti.
Referral Partner agrees that, during the Term hereof, so long as Referral Partner is receiving Referral Fees hereunder and for a period of two (2) years thereafter neither it nor any of its affiliates will directly or indirectly itself or permit or assist any third party to: (i) call on, solicit, take away, or attempt to call on, solicit, or take away any Referred Customers or other customers of Tipalti whether referred by Referral Partner or not; or (ii) entice, induce or in any manner influence any person or entity who is, or shall be in the direct or indirect service of Tipalti to leave the same for the purpose of engaging in a business or being employed by or associated with any other business.
Each party may assign its rights or obligations under this Agreement on notice to another in the event of a company reorganization, merger or acquisition. Otherwise, either party may not assign its rights or obligations without the consent of the other which consent shall not be unreasonably withheld. In any event, the assignment by the Referral Partner will be effective upon assignee’s successful completion of Tipalti’s onboarding and compliance check.
All notices and other communications required or permitted hereunder to be given to a party to this Agreement shall be in writing and shall be sent by mail to the following addresses, if to Tipalti: to Tipalti General Counsel, 1810 Gateway Drive, Suite 300, San Mateo, California, 94404, with a copy to Chief Revenue Officer, 1810 Gateway Drive, Suite 300 San Mateo, California, 94404, if to Referral Partner to the address indicated on the Order Form. Any notice sent in accordance with this Section shall be effective within 3 days of the day it is sent.
10. Entire Agreement; Binding Effect.
This Agreement, including all schedules, exhibits and attachments thereto, sets forth the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein, and supersedes all prior agreements, promises, covenants, arrangements, communications, representations or warranties, whether oral or written, by any officer, partner, employee or representative of any party hereto.
Referral Partner agrees to indemnify, defend, and hold harmless Tipalti, its parent, affiliates, officers, directors, employees from and against any third party lawsuit (including reasonable attorneys’ fees and cost of defense) (collectively “Indemnify”) caused by Referral Partner’s (i) breach of this Agreement; (ii) violation of Applicable Law.
12. LIMITATION OF LIABILITY.
UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES SHALL THE LIABILITY OF TIPALTI HEREUNDER EXCEED THE AMOUNT OF REFERRAL FEES PAID HEREUNDER DURING THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
13. Governing Law.
This Agreement shall be governed by the laws of the State of New York, without regard to its conflict of law provisions. The competent courts of New York City, New York, shall have sole and exclusive jurisdiction over the parties and subject matter of this Agreement.
14. Term and Termination.
The term of this Agreement shall be 12 months from the Effective Date and shall renew for additional one-year terms unless terminated by either party. This Agreement may be terminated for convenience by providing the other party with 30 days’ written notice of termination. Additionally, this Agreement may be terminated by Tipalti for cause if Referral Partner breaches a material terms of this Agreement. If the breach is curable, in Tipalti’s sole direction, then Tipalti may provide Referral Partner with 30 days’ prior notice and opportunity to cure prior to terminating this Agreement. If Tipalti determines that the breach is either not curable, or decides that the breach is of a nature that makes Referral Partner no longer desirable as a participant of Tipalti’s Referral Program, then Tipalti may terminate this Agreement for cause effective immediately by providing Referral Partner with notice of termination.
Sections 2 and 5 – 15 of this Agreement shall survive termination of this Agreement as well as any other sections reasonably expected.