PLEASE READ THE FOLLOWING CLOUTHUB AFFILIATE REFERRAL AGREEMENT CAREFULLY. BY CHECKING THE “I AGREE” BOX IN THE AFFILIATE FORM ABOVE AND SUBMITTING THE AFFILIATE FORM BY CLICKING THE “SUBMIT” BUTTON, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CHECK THE BOX AND SUBMIT THE AFFILIATE FORM.
CLOUTHUB AFFILIATE REFERRAL AGREEMENT
This CloutHub Affiliate Referral Agreement (“Agreement”) is made and entered into by and between CloutHub and Affiliate (as defined below). This Agreement shall become binding upon Approval (as defined below). CloutHub and Affiliate are sometimes referred to as a “party” and together as the “parties.”
Affiliate wishes to refer potential opportunities with customers to CloutHub, and CloutHub is willing to compensate Affiliate for such referrals, on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the covenants and agreements contained herein, and other valuable consideration, the receipt and sufficiency of which are acknowledged, CloutHub and Affiliate agree as follows:
As used in this Agreement the following terms shall have the meanings set for the below:
“Affiliate” means the person or company (including Company Name and other information) detailed in the Affiliate Form submitted to CloutHub.
“Affiliate Form” means the form provided by CloutHub via its website, a link or in the manner as determined by CloutHub.
“Approval” has the meaning given to it in Section 1 hereof.
“CloutHub” means CloutHub, Inc., a Nevada corporation, with an office located at 3651 Lindell Road, Suite D347, Las Vegas, NV 89103.
“Commissionable Referral” has the meaning given to it in Section 6(a) hereof.
“Qualified Referral” means a potential customer that meets the requirements set forth in Section 5(b) hereof and is accepted by CloutHub.
“Referral” has the meaning given to it in Section 5(a) hereof.
“Submission Date” means the date the Affiliate submitted to CloutHub the applicable Referral.
- Approval. The legal effectiveness of this Agreement is subject to CloutHub’s approval in writing (via mail, fax or e-mail) of Affiliate’s application for participation in the CloutHub Referral Program (“Approval”), and this Agreement shall commence on the date of such Approval (“Effective Date”). CloutHub may reject or decline to accept Affiliate’s application for any or no reason at its sole discretion. CloutHub may take screening measures of any sort in connection with Affiliate’s application. If CloutHub approves Affiliate’s application, Affiliate may refer qualified referrals to CloutHub during the term and in accordance with all terms and conditions of this Agreement, to enable CloutHub to solicit orders for CloutHub products and/or services (“Services”).
- Term and Termination.
- Term. The term of this Agreement shall be ninety (90) days from the Effective Date and shall automatically renew for successive ninety (90) day periods unless either party provides written notice to the other party prior to the expiration of initial term or any renewal term of its intent not to renew.
- Termination for Convenience. Either party may terminate this Agreement for convenience by providing the other party with prior written notice of termination.
- Termination for Cause. Either party may immediately terminate this Agreement upon the occurrence of any of the following events: (a) a material breach of this Agreement by the other party, (b) if the other party becomes insolvent, makes a general assignment for the benefit of creditors, applies for, consents to, or acquiesces in the appointment of a trustee, receiver or other custodian, whether voluntary or otherwise, or (c) if there is instituted by or against the other party any proceedings under any bankruptcy law, or under any other law for the relief of debtors now or hereafter existing and such proceeding is not dismissed within thirty (30) days thereafter.
- Effect Upon Termination. Section 3, 4, 8, 9, 10, 11 and 12 shall survive the termination of this Agreement. Upon termination of this Agreement for any reason, Affiliate shall immediately cease the use of all CloutHub brochures, literature, documentation and other materials within Affiliate’s control. Except as set forth in Section 6(d) hereof, Affiliate shall have no rights or claims against CloutHub in connection with termination, expiration or non-renewal of this Agreement; in particular, without any limitation, Affiliate hereby irrevocably waives any rights to additional commissions and/or compensation to the maximum extent permissible under applicable law.
- Unauthorized Representations or Warranties. Affiliate’s activities under this Agreement shall be limited as follows:
- Affiliate shall conduct its business in its own name and in accordance with the highest business standards, acting dutifully, in good faith and in compliance with all applicable laws, and not perform any act which would or might reflect adversely upon the Services or the business or integrity of CloutHub.
- Affiliate shall not be, or purport to be, authorized to legally represent CloutHub or to conduct negotiations on behalf of CloutHub. Affiliate shall not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of CloutHub or register this Agreement nor shall CloutHub be liable for any acts, omissions to act, contracts, commitments, promises or representations made by Affiliate.
- Affiliate shall refrain from making any representations, warranties or other statements about Services, prices or business practices, except that Affiliate may forward to prospective customers unmodified marketing materials provided by CloutHub.
- Affiliate shall refrain from making any representations, warranties or other statements that are deceptive, misleading or otherwise inconsistent with the literature distributed CloutHub or its suppliers with respect thereto.
- No License. Affiliate acknowledges and agrees that no license is granted under this Agreement to use or access any Services, any of CloutHub’s proprietary technologies, or any data, information or other content provided. As between the parties, CloutHub retains all right, title and interest in and to the Services and all technology, data, information or other content embodied therein or provided thereby, as well as any intellectual property rights or similar rights in connection therewith, and Affiliate acknowledges that Affiliate neither owns nor acquires any rights in or to the Services.
- Submission of Qualified Referrals. Affiliate shall refer any potential customers to CloutHub (a “Referral”) through an online link provided by CloutHub to Affiliate. Final determination as to whether a potential customer qualifies as a Qualified Referral rests with CloutHub in its sole discretion.
- Qualified Referral Requirements. To qualify as a Qualified Referral, the potential customer must (a) represent an opportunity that has not been previously identified or contacted by CloutHub directly or through its other distribution and representation channels (including any other affiliates or agents), (b) not have been in discussions or other contact with CloutHub within ninety (90) days of the Submission Date, (c) become a subscriber of one of the Services within ninety (90) days of the Submission Date without receiving any monetary or other incentive from Affiliate, (c) have paid the subscription and/or membership fees covering at least two (2) months for access and use of the Services (either as part of an annual payment or two (2) separate monthly payments) and (d) otherwise meet any other criteria (e.g., credit worthiness, etc.) required by CloutHub for new customers. A Referral shall be deemed rejected by CloutHub if the potential customer has not subscribed to one of the Services within ninety (90) days of the Submission Date; provided that on a case by case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend such 90 day period for a particular Referral.
- Acceptance of Qualified Referrals. CloutHub will be under no obligation to accept any Referral submitted by Affiliate and may reject or decline to accept Referrals for any or no reason at its sole discretion, including, without limitation, because:
- The Referral was an existing customer of CloutHub at the time of the submission of the Referral by Affiliate; or
- CloutHub was already involved in preliminary or advanced discussions relating to the provision of Services to the Referral at the time of the submission of the Referral by Affiliate; or
- Commissionable Referral. A Qualified Referral qualifies as commissionable (“Commissionable Referral”) only if:
- Affiliate has submitted Referral in accordance with Section 5(a) hereof;
- CloutHub has accepted the Referral as a Qualified Referral (e.g., not rejected the Referral as set forth in Section 5(c), or otherwise);
- The Qualified Referral has paid the subscription and/or membership fees covering at least two (2) months for access and use of the Services (either as part of an annual payment or two (2) separate monthly payments) as required under Section 5(b) hereof; and
- CloutHub has received payment from the Qualified Referral.
- Commissions and Payments. Subject to Affiliate’s compliance with all terms and conditions of this Agreement, CloutHub will pay to the Affiliate for the term of this Agreement commissions in an amount equal to the amount set forth by CloutHub upon Approval of Affiliate. Commissions will be earned by Affiliate only for the Services initially purchased or subscribed for by the Qualified Referral. Affiliate acknowledges and agrees that any upsells of Services by CloutHub shall not be included hereunder. Affiliate further acknowledges and agrees that commission payments shall be reduced by any applicable withholding taxes and subsequently credited charges, write-offs, refunds, charge backs, or other levies. Such commission payments will be due to Affiliate thirty (30) days after the date on which CloutHub receives payment from the Qualified Referral.
- Modifications. CloutHub may modify the Referral submission process and the amounts and conditions relating to commissions upon ten (10) days written notice. Such changes will only affect the Referrals submitted after such ten (10) day period unless otherwise agreed to in writing by the parties. CloutHub may also enter into specific addendums and/or agreements with Affiliates varying the terms of this Agreement at its sole and absolute discretion.
- Commissions After Termination. Except in the event of termination for breach by either party, upon the termination of this Agreement, CloutHub will pay commissions to Affiliate for any Commissionable Referral that meet the requirements set forth in Section 6(a)(i) through (iii) hereof prior to such termination.
- No Other Payments. Except as expressly provided in this Section, Affiliate is not entitled to any fees, reimbursements or other payments. Affiliate shall promptly refund to CloutHub any overpayments.
- Covenants. Affiliate agrees that it shall not engage in any of the following actions or activities:
- Inappropriate advertisements (e.g., false claims, misleading hyperlinks, etc.);
- Spamming (e.g., mass email, mass newsgroup posting, etc.);
- Advertising on sites containing or promoting illegal activities;
- Failure to disclose the affiliate relationship for any promotion that qualifies as an endorsement under existing Federal Trade Commission guidelines and regulations, or any applicable state laws.
- Violation of CloutHub’s or any third party’s intellectual property rights;
- Offering rebates, coupons or other form of promised compensation from the commissions paid to a Commissionable Referral as an incentive or otherwise; provided, however, that adding bonuses or bundling other products or services with the Services is permissible.
- Self-referrals, fraudulent transactions or other fraudulent behavior as determined by CloutHub in its sole and absolute discretion.
- Confidentiality. Throughout the term of this Agreement, Affiliate may receive Confidential Information (as hereinafter defined) from CloutHub. For the purposes hereof, the term “Confidential Information” shall mean, collectively, the financial condition, ownership, management, properties and assets of CloutHub, (ii) the systems, software, hardware, documentation, specifications, drawings, reports, manuals, blueprints, letters, programs, source code, know-how, routines, subroutines, programming and other techniques, contracts, agreements (including, without limitation, the terms of this Agreement), processes, trade secrets, intellectual property rights, products, services, costs, inventions, marketing and sales techniques, researches and research programs, corporate strategies of CloutHub and the persons that CloutHub and/or its affiliates represent, and (iii) the names of and relationships with all persons with which CloutHub transacts business, including, without limitation, to all existing, former and prospective suppliers, customers, joint venture partners, investors, principals, lenders, financiers and other capital sources of CloutHub. Confidential Information does not include information that (a) is previously rightfully known by Affiliate without restriction on disclosure, (b) is or becomes known to the general public, through no act or omission on the part of the Affiliate, (c) is disclosed to the Affiliate by a third party without breach of any separate nondisclosure obligation, of (d) is required to be disclosed to a governmental authority pursuant to judicial order or decree or by applicable law. Affiliate agrees to hold the Confidential Information in the strictest confidence and undertakes not to disclose to any third party any of the Confidential Information nor use the Confidential Information for any purposes other than the purpose contemplated herein without the express prior written consent of CloutHub. Affiliate agrees, upon termination of this Agreement or upon written request by CloutHub, to return or to destroy all documents and other tangible materials containing or constituting any Confidential Information, including all copies thereof and all such notes which disclose Confidential Information, and Affiliate will make no further use of such documents or materials.
- WARRANTIES. CLOUTHUB MAKES NO WARRANTIES, WHETHER EXPRESS OR IMPLIED, OF ANY KIND ABOUT ITS PRODUCTS OR ANY OF ITS SERVICES PROVIDED BY CLOUTHUB TO ANY PARTY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- DISCLAIMER OF DAMAGES; LIMITATION OF LIABILITY. TO THE EXTENT PERMISSABLE UNDER APPLICABLE LAW, CLOUTHUB SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF IT HAS BEEN INFORMED OF THE POSSIBILITY THEREOF. TO THE EXTENT PERMISSIABLE UNDER LAW, THE AGGREGATE LIABILITY OF CLOUTHUB REGARDLESS OF THE FORM OF THE ACTION (AND WHETHER IN CONTRACT OR TORT) SHALL BE LIMITED TO THE TOTAL AMOUNT PAID OR PAYABLE TO AFFILIATE UNDER THIS AGREEMENT. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
- Indemnity. Affiliate shall indemnify, defend and hold CloutHub and its officers, directors, shareholders, agents and employees from and against all claims, suits, demands, actions, proceedings, judgments, penalties, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable legal and expert witness fees) resulting from any and all third-party claims against CloutHub arising from or relating to (a) any representation and/or warranty made by Affiliate directly or indirectly relating to this Agreement or the Services, (b) Affiliate’s acts or omissions in promoting CloutHub or the performance of this Agreement, (c) Affiliate’s breach of this Agreement, or (d) Affiliate’s violation of applicable law or regulation.
- Non-Exclusive Agreement. Each 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, once Affiliate establishes a Commissionable Referral with CloutHub, Affiliate agrees not to refer a competitor of CloutHub to such Commissionable Referral. Affiliate agrees not to enter into an agreement with a third party the effect of which would prohibit Affiliate’s submission of a Referral pursuant to this Agreement.
- Notice. Routine communications under this Agreement may be made by e-mail. Any legal notices under this Agreement, including without limitation notices regarding termination, breach, indemnification, or other non-routine matters, shall be effective only if delivered in writing and in compliance with this section. Notice shall be deemed to be given (a) as of the date delivered if delivered personally; (b) one (1) day after delivery if sent by overnight courier; or (c) upon receipt if sent by U.S. certified mail, return receipt requested; in either case to the respective address for the party as set forth herein or in the Affiliate Form.
- Assignment. Any assignment of this Agreement by either party in whole or in part without the other party’s prior written consent, which consent shall not be unreasonably withheld, will be null and void except an assignment to a successor, that is not a competitor of the other party, made in connection with a merger or sale of all or substantially all of either party’s assets or stock.
- Entire Agreement. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement may be executed in counterparts, including by electronic signature, pdf or facsimile, each of which will be deemed an original, but all of which will constitute one and the same document.
- Independent Contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement and neither party has the authority to bind the other party or to contract in the name of or create a liability against the other party in any way or for any purpose without such party’s prior consent.
- Publicity. Except for the purposes of fulfilling each parties’ obligations herein, neither party shall use the other party’s trademarks or make any public statements concerning this Agreement or the relationship between the parties without the other party’s prior written consent, which shall not be unreasonably withheld. If either party desires to issue a press release regarding the arrangement contemplated hereunder, it shall not do so without the other party’s prior written approval.
- Governing Law. This Agreement shall be governed by the internal laws of the State of Nevada, without regard to conflict of laws provisions. All rights and remedies of the parties under this Agreement, in law or at equity, are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be an election of that remedy to the exclusion of other remedies.
- Equitable Relief. Either party may seek equitable relief from a court at any time. Except for an action to obtain equitable relief, neither party may commence a civil action with respect to the matters submitted to mediation until after completing mediation.
- Arbitration. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives. Any dispute arising out of or relating to this Agreement, or the breach, termination or validity thereof, that has not been resolved by negotiation within thirty (30) days after a party’s request for negotiation, shall be settled by final, binding arbitration under the rules of the then-current JAMS Streamlined Arbitration Rules & Procedures, https://www.jamsadr.com/rules-streamlined-arbitration/ (“JAMS”); provided, however, that either party retains the right to apply to any court of competent jurisdiction worldwide to protect and enforce its intellectual property and other rights. The arbitrator will be able to award damages only if consistent with the terms of this Agreement. The arbitration will be held in Las Vegas, Nevada and the laws of the State of Nevada, USA shall govern this Agreement, without regard to any conflicts of laws rules. The parties will share equally the arbitrator’s fees and expenses pending the resolution of the arbitration unless the arbitrator, pursuant to its right but not its obligation, requires the non-prevailing party to bear all or any portion of the costs of the prevailing party, including its reasonable attorney’s fees and the cost of the arbitrator. The decision of the arbitrator will be final and may be sued on or enforced by the party in whose favor it runs in any court of competent jurisdiction at the option of such party.
- Force Majeure. Neither party shall be liable for a failure to perform any of its obligations hereunder when such failure is caused by or results from (i) strike, blacklisting, boycott or sanctions however incurred; or (ii) acts of God, public enemies, authority of law, embargo, quarantine, riot, terrorist attack, insurrection or war.
- Waiver. A party’s waiver of any breach of this Agreement by the other party will not constitute a waiver of any rights or any subsequent breach of the same or different provision thereof. To be enforceable, a waiver must be in writing signed by a duly authorized representative of the waiving party. Where written consent is required, such consent must be in a writing signed by a duly authorized representative of the consenting party, except where e-mail consent is expressly permitted.
BY CLICKING “I AGREE” AFFILIATE REPRESENTS THAT (i) AFFILIATE HAS SUBMITTED COMPLETE AND ACCURATE INFORMATION IN RELATION TO WITH ITS APPLICATION, AND (2) AFFILIATE IS ENTERING INTO THIS AGREEMENT ON ITS OWN BEHALF AND THAT THE PERSON CLICKING “I AGREE” HAS AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF AFFILIATE. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU DO NOT WISH TO ENTER INTO THIS AGREEMENT ON YOUR OR AFFILIATE’S BEHALF, OR IF YOU OR AFFILIATE DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, AFFILIATE WILL NOT BE ELIGIBLE FOR PARTICIPATION IN CLOUTHUB’S REFERRAL PROGRAM.