Effective: June 13, 2019
Last updated: July 14, 2022
This Referral Agreement (the “Agreement”), is entered into between 7SHIFTS EMPLOYEE SCHEDULING SOFTWARE INC. (“7shifts), with offices located at 211 19th St East #703, SK S7K 0A2, and the individual or entity indicated on the 7shifts Referral Partner Form (“Referral Partner”) as of the date that Referral Partner has agreed to this Agreement electronically (the“Effective Date”).
Each of 7shifts and the Referral Partner being sometimes referred to as a “Party” and together as the “Parties”.
NOW, THEREFORE, in consideration of the mutual promises contained herein, and intending to be legally bound, the Parties agree as follows:
- Sales Lead Information. From time to time during the Initial Term the Referral Partner agrees to provide 7shifts with sales lead information with respect to prospective customers not otherwise known to 7shifts and whose service and/or product requirements might be met by 7shifts (a “Partner Referral”).
- Scope and Appointment. During the Term, the Referral Partner agrees to conduct business in a manner that will not reflect negatively on the products and services and on the good name and reputation of 7shifts, and will promote 7shifts products and services in a manner and with a level of quality that is at least consistent with the reputation for quality associated with the Referral Partner. Referral Partner represents and warrants to 7shifts that it is able to enter into this Agreement. If Referral Partner is a company or other entity, then the individual entering into this Agreement represents and warrants that it has the authority to bind the entity.
- Authority The Referral Partner has no authority, without the prior written consent of 7shifts, to bind 7shifts to any contract, representation and/or understanding concerning 7shifts, or the services offered by 7shifts. The Referral Partner shall not provide to any third party any representations, guarantees and/or indemnities regarding 7shifts’ products and/or services.
- Non-Exclusivity. The relationship between the Parties is non-exclusive, meaning that each Party shall be free at any time to enter into the same or similar arrangements as those contemplated in this Agreement with an individual, a corporation, a partnership, a trust, an unincorporated organization, a governmental authority, and the executors, administrators or personal representatives of an individual in such capacity, provided that such Party complies with all of its obligations under this Agreement.
- Referrals to 7shifts. For each Partner Referral, the Referral Partner shall provide information about the prospective customer to 7shifts by completing and submitting the online lead submission form provided by 7shifts ( the “7shifts Referral Form”). After a Partner Referral is approved by 7shifts, the Referral Partner shall have no responsibility or obligation in connection with subsequent discussions or negotiations between 7shifts and the prospective customer (the “Prospect”). 7shifts will use commercially reasonable efforts to enter into contracts with Prospect(s) within the applicable time period stated in Article 6 below. In the event the approved Prospect(s) execute a contract with 7shifts within one hundred twenty (120) days from the date the 7shifts Referral Form was received by 7shifts, such referred customer(s) shall be referred to herein as a “Partner Referred Customer”. 7shifts also will promptly notify the Referral Partner of each Partner Referred Customer resulting from a Partner Referral. In addition, 7shifts will provide the Referral Partner a status report of all referrals. For avoidance of doubt, a Partner Referred Customer shall not include: (i) existing customers and/or Prospects of 7shifts, or (ii) if 7shifts has already had contact with the prospective customer. 7shifts reserves the right to reject any potential customer in 7shifts’ sole and absolute discretion.
- Compensation
- 6.1 During the term of this Agreement and provided the conditions set forth herein are met, the Referral Partner shall be entitled to receive a payment (the “Referral Fee”). For each Partner Referred Customer, 7shifts shall pay the Referral Partner a Referral Fee of twenty percent (20%) of any net revenue received from the Partner Referred Customer for 7shifts services during the first year of the agreement between the Partner Referred Customer and 7shifts, provided this Agreement has not been terminated or expired. The Referral Fee shall be inclusive of taxes.
- 6.2 Notwithstanding anything herein to the contrary, the Referral Fee shall be “earned” only if each of the following conditions are met:
- 6.2.1 The Partner Referred Customer has entered into the applicable agreements with 7shifts in a form acceptable to 7shifts within one-hundred-twenty (120) days of 7shifts receipt of the 7shifts Referral Form;
- 6.2.2 Referral Partner timely receives applicable payment(s) from such the Referred Customer for the products and services provided, and
- 6.2.3 Referral Partner is not in breach of this Agreement.
- Payments to Referral Partner. Upon satisfaction of the requirements of Article 6 above, 7shifts will pay the Referral Partner a Commission (or a portion thereof) within thirty (30) days after the end of the then-current calendar quarter in which the applicable Referred Customer is processing credit card payments in a live production environment. For avoidance of doubt, if a Partner Referral is received by 7shifts prior to termination of this Agreement, and 7shifts enters into a contract within the applicable time period stated above and receives applicable payment(s) from such Referred Customer, then the Referral Fee for such Referred Customer will be due and payable notwithstanding the termination of this Agreement in accordance with the terms and conditions set forth herein; provided that the Referral Partner is not in breach of this Agreement.
- Pricing and Terms. 7shifts shall have sole discretion to determine pricing and other terms for its products and services, whether pursuant to standard forms or fee schedules, or on case by case basis. 7shifts shall give the Referral Partner reasonable advance notice of any material modification of 7shifts products or services (other than pricing terms), or its intention to discontinue any of its products or services.
- Relationship of Referred Customers. Referral Partner agrees not to interfere with 7shifts’ relationship with a Referred Customer, and shall have no right to object to any decisions made by 7shifts hereto regarding the terms or conditions of a particular relationship entered into with an applicable Referred Customer.
- Joint Marketing. In connection with the activities described above, both Parties hereby grants one another a limited nonexclusive, worldwide, royalty-free right to use, reproduce, publicly display, distribute and transmit electronically its trademarks, service marks, trade names, logos or other source identifiers (collectively“Marks”), as necessary to meet its obligations hereunder during the Term of this Agreement. The Marks of both Parties must be displayed only in the form supplied by the owner of such Marks, and strictly in compliance with the usage instructions and other requirements (including, without limitation, inclusion of all trademark and copyright notices or legends), which may be revised from time to time. Neither Party shall knowingly do anything that would impair, damage, or otherwise be detrimental to the reputation or goodwill associated with the other or its Marks. If a Party determines that the other Party is improperly using its Marks, such Party agrees to promptly modify its usage as requested.
- Confidential Information. For purposes of this Agreement, the term “Confidential Information” shall mean any information, in whatever form, received by one Party (“Receiving Party”) from the other (the“Disclosing Party”) about the Disclosing Party’s business, business plans, customers, suppliers, strategies, trade secrets, operations, records, finances, assets or technologies and other proprietary information to which the Receiving Party has access whether in oral, written graphic and/or machine readable form, in the course or in connection with providing the services and the terms and conditions of this Agreement. Notwithstanding the foregoing, information shall not be considered Confidential Information if it: (a) is or becomes a part of the public domain through no act or omission of the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure and had not been obtained by the Receiving Party from the Disclosing Party; (c) is lawfully disclosed to the Receiving Party by a third party that is not subject to confidentiality obligations; or (d) is independently developed by the Receiving Party without use or reference to the Disclosing Party’s Confidential Information. During the term of this Agreement and thereafter, the Receiving Party shall hold the Disclosing Party’s Confidential Information in confidence and utilize it only in accordance with the terms and conditions of this Agreement. Except as expressly permitted by this Agreement, each Party shall limit the use of, and access to, all Confidential Information of the other party to those employees or agents whose use of or access to such Confidential Information is necessary to fulfill the objectives of this Agreement. The Receiving Party shall use commercially reasonable efforts to prevent unauthorized disclosure, publication, display or use of any Confidential Information of the Disclosing Party. In no event shall the Receiving Party use less than a reasonable degree of care to protect and preserve the Disclosing Party’s Confidential Information.
- Governing Law; Jurisdiction; Venue. This Agreement and its interpretation shall be governed by and construed in accordance with the laws of the Province of Saskatchewan, without regard to its conflict of law’s provisions. In the event that either party to this Agreement commences a lawsuit or other proceeding relating to or arising out of this Agreement, the Parties agree and consent that any such action will be brought exclusively in the provincial or federal courts located in Saskatchewan, and the Parties hereby submit to the venue of the courts situated therein.
- Term and Termination.
- Term. This Agreement shall commence on the Effective Date for one (1) year (the “Initial Term”) and will renew for one (1) month periods until thereafter terminated by either Party upon providing the other Party with thirty (30) days prior written notice. 7shifts may terminate this Agreement at any time by providing 15 days’ notice to Referral Partner.
- Termination for Cause. This Agreement may be terminated immediately for cause by either Party: (a) if the other party fails to cure a material breach of this Agreement within ten (10) days of receipt of written notice from the terminating Party specifying the material breach; (b) if the other Party becomes insolvent or makes a general assignment for the benefit of its creditors; (c) if any proceeding is commenced by or against the other party under any bankruptcy or insolvency laws or any laws relating to the relief of debtors; or (d) if an application is filed for the appointment of any receiver, conservator or trustee to take possession of the properties of the other Party, or any procedure is initiated for the voluntary dissolution, liquidation or suspension of business of the other Party and is not dismissed within sixty (60) days.
- Effect of Termination. Upon termination of this Agreement for cause, 7shifts will pay the Referral Partner any Referral Fee(s) earned for Partner Referred Customers through the effective date of termination in accordance with the terms and conditions set forth herein. Upon any termination of this Agreement, each Party will deliver to the other Party all Confidential Information, documentation and customer information including any in progress or prospective customers at the time of termination and destroy all electronic copies related to the foregoing.
- Warranty. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY OTHER WARRANTY OR CONDITION, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY AND/OR FITNESS FOR A PARTICULAR PURPOSE.
- Indemnification.
- Referral Partner, at its expense, will indemnify, defend and hold harmless 7shifts, its officers, associates, employees, contractors and agents from and against any and all third-party claims, damages, liabilities, losses, costs, demands and expenses (including reasonable attorneys’ fees and costs of litigation) (collectively“Claim(s)”) arising out of or relating to (a) any grossly negligent act and/or omission of Referral Partner and/or any of its Representatives relating to its activities in connection with this Agreement; (b) any misrepresentation by Referral Partner related to 7shifts and its services and/or products; or (c) any breach of applicable laws by Referral Partner. 7shifts shall give notice to the Referral Partner of any Claim immediately upon becoming aware of the same. 7shifts shall give the Referral Partner the sole right to conduct the defense of any claim and/or action, and/or the negotiation of any settlement, in respect of a Claim and does not at any time admit liability and/or otherwise settle and/or compromise and/or attempt to settle and/or compromise such Claim and/or action except upon the express written instructions of the Referral Partner. 7shifts shall act in accordance with the reasonable instructions of the Referral Partner and give Referral Partner such assistance as it shall reasonably require in respect of the conduct of the defense including without prejudice to the generality of the foregoing the filing of all pleadings and other court processes and the provision of all relevant documents. 7shifts acknowledges and agrees that it shall use commercially reasonable efforts to mitigate the costs and expenses related to such Claim. 7shifts may reasonably participate in such defense at its expense.
- Limitation of Liability. 7SHIFTS’ TOTAL AND CUMULATIVE LIABILITY FOR DIRECT DAMAGES ARISING OUT OF AND/OR IN CONNECTION WITH THIS AGREEMENT SHALL IN NO EVENT EXCEED THE COMMISSIONS PAID TO REFERRAL PARTNER DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF SUCH CLAIM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL AND/OR PUNITIVE DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- General. All terms and provisions of this Agreement which by their nature are intended to survive the termination of this Agreement, shall survive such termination. Referral Partner may not assign, as a result of a change of control or by operation of law or otherwise, its rights or obligations under this Agreement without the prior written consent of 7shifts. This Agreement will be binding upon the Parties and their respective legal successors and permitted assigns. Each Party is an independent contractor and will determine the method, details and means of performing the services. Nothing contained herein shall give or is intended to give any rights of any kind to any third persons. No waiver of any of the terms and conditions of this Agreement will be valid unless in writing and designated as such. If anyone (1) or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will be unimpaired and will remain in full force and effect. This Agreement and any amendments thereto may be executed in any number of counterparts and executed by facsimile, electronically using electronic signature or by other electronic communication used by the Parties. The headings and titles of the paragraphs of this Agreement are not part of this Agreement, but are for convenience only and are not intended to define, limit or construe the contents of the provisions contained herein. This Agreement, the Referral Form and any exhibits attached hereto constitutes the complete agreement and understanding between the Parties with respect to the subject matter hereof, and supersedes all prior agreements and understandings between the Parties.
The Parties have caused this Agreement to be executed by their duly authorized representatives as of the Effective Date.
6.3 7shifts shall pay Referral Partner any Referral Fees owed quarterly. Only fees actually collected from Partner Referred Customers will be included in the Referral Fee. 7shifts shall make available, if requested, to an accounting document listing the Referred Customers that are eligible for a Referral Fee and the amount payable to the Referral Partner for each Referred Customer during the prior quarter (the “Accounting Statement”).