REFERRAL TERMS AND CONDITIONS
BETWEEN: Background Info USA (the “Company”), a company organized and existing under the laws of the Lee County, Florida with its head office located at: 9990 Coconut Rd, Bonita Springs, FL 34135
AND: You (the “Referrer”), an individual.
Collectively, the Company and the Referrer shall be referred to as the “Parties.”
WHEREAS, the Company is engaged in the business of Employment Background Screening (the “Services”); and
WHEREAS, the Referrer desires to refer potential clients (“Referrals”) of the Services to the Company in exchange for a commission on any revenue generated by the Company as a result of such Introductions;
NOW, THEREFORE, the Parties agree as follows:
1. REFERRALS
1.1. During the Term, the Referrer will make Introductions of the Company to potential clients for purposes of promoting the Services to such potential clients. The Referrer will use its professional judgment as to the appropriateness of a particular Introduction (recognizing that some Introductions may not be appropriate at a particular time or at any time).
1.2. The Company will meet or conference and negotiate independently with a potential client after an Introduction with respect to a potential relationship and the terms applicable to such potential relationship.
1.3. The Referrer may not object to any decisions made by the Company regarding the terms or conditions of a particular relationship entered into after an Introduction. Further, the Company will have sole discretion to enter into or not enter into an arrangement with a potential client.
2. COMMISSION
2.1. During the Term, the Company will pay the Referrer 20% net commission or a 20% invoice credit (the “Compensation”) on “Collection Service Revenue” generated because of Introductions by the Referrer.
2.2. The Compensation shall be considered complete consideration for all Referrals made during the Term. The Referrer shall be responsible for any and all income and other taxes applicable to it in connection with its receipt of Compensation pursuant hereto and as an independent contractor of the Company.
2.3. The Company will not be responsible for any expenses of the Referrer in the course of the performance of its obligations hereunder unless such expenses have been previously approved in writing by the Company.
3. TERM AND TERMINATION
3.1. The Term (the “Initial Term”) of this Agreement shall commence on the Effective Date and shall continue for a period of 24 months. Prior to the end of the Initial Term and each “Renewal Term” (as hereafter defined), this Agreement will automatically extend for an additional 24 month period (each, a “Renewal Term”) unless either Party sends the other Party a notice of non-renewal at least 90 days prior to the expiration of the “Term” (as hereafter defined). The Initial Term and any Renewal Terms shall be collectively referred to herein as the “Term.” This Agreement may be terminated by either party upon 90 days’ prior written notice.
3.2. The following provisions shall survive the Termination Date: Representations and Warranties, Indemnification, Limitation of Liability, Confidentiality, Non-Competition and Non-Solicitation.
4. INDEPENDENT CONTRACTOR RELATIONSHIP
4.1. No Employment Relationship. The Company and the Referrer each expressly agree and understand that they are creating an independent contractor relationship, and that the Referrer shall not be considered an employee of the Company for any purpose. The Referrer is not entitled to receive or participate in any medical, retirement, vacation, paid or unpaid leave, or other benefits provided by the Company to its employees. The Referrer is exclusively responsible for all taxes and any other statutory benefits otherwise required to be provided to employees, and all fees and licenses, if any, required for the performance of the Services hereunder.
4.2. No Exclusivity of Services Other Than to Competitors. This Agreement shall not restrict the Referrer from performing Services for other clients or businesses, provided, however, that during the Term of this Agreement, the Referrer shall not apply, bid, or contract for, or undertake any employment, independent contractor work or consulting work with any competitor of the Company. The determination of which businesses constitute “competitors” of the Company shall be solely within the exclusive discretion of the Company.
4.3. Performance of Services for Competitors. The Referrer will notify the Company immediately if, during the Term, he engages, or proposes to engage, in the performance of Services for any competitor of the Company, or any vendor to or customer of the Company. If the Referrer performs Services, whether as an employee or an independent contractor, for a competitor of the Company during the Term of this Agreement, the Company may terminate this Agreement immediately and without further obligation. Additionally, to avoid the appearance or existence of a conflict of interest, during the Term, the Referrer must fully disclose in advance to the Company the terms of any proposed or actual Services for a vendor or customer of the Company, and the Company shall have the right in its sole discretion to disapprove the transaction on conflict of interest grounds, or alternatively, to terminate this Agreement immediately and without further obligation to the Referrer.
5. REPRESENTATIONS AND WARRANTIES
5.1. Each of the Referrer and the Company represents and warrants that:
5.1.1. it has the right to enter into this Agreement and the right to grant the rights granted herein;
5.1.2. it is not a party to any agreement, contract, or understanding that would prevent, limit or hinder its performance of this Agreement;
5.1.3. during the Term, it will not enter into any contract, agreement or understanding which is in conflict or which would interfere with the full and complete performance of any of the duties or grants hereunder; and
5.1.4. it is not a party to any pending claims or litigation which might affect its performance of this Agreement.
5.2. The Referrer shall provide the Referrer Services diligently and as per industry standards.
5.3. The Referrer shall not provide misleading information about the Company or its Services to any third party.
5.4. The Referrer shall for the Term of the Agreement work exclusively with the Company and not work with any other similar and competing company, whether paid or free, to provide the Services.
5.5. The Referrer shall conduct itself in a professional manner while performing the Referrer Services for the Company.
5.6. The Referrer hereby represents and warrants that, as of the date hereof and continuing throughout the Term of this Agreement, they are not and will not be in any way restricted or prohibited, contractually or otherwise, from entering into this Agreement or performing the Referrer Services contemplated hereunder.
5.7. Except as specifically set forth in this Agreement, to the maximum extent permitted by law, each Party disclaims all warranties and representations, whether express, implied, or statutory, with respect to the marketing services provided to the other Party and other obligations undertaken hereunder, including without limitation, the implied warranties of merchantability, fitness for a particular purpose (even if the Referrer has been informed of such purpose), or warranties arising from a course of dealing, usage or trade practice. Further, the Company does not make any warranty that the quality of the Services purchased or obtained by a client after a Referral will meet such client’s expectations.
6. SOLICITATION
6.1. The Referrer agrees to refrain from any solicitation or recruitment (directly or indirectly) of any of the Company’s employees during the Term of this Agreement and for a period after the expiration or termination of this Agreement equal in duration to the duration of this Agreement. General solicitation, not directed at the Company’s employees, will not constitute a violation of this section.
7. LANGUAGE OF THE AGREEMENT
7.1. The language of the Agreement shall be the English Language, which shall be the binding and controlling language for all matters relating to the meaning or interpretation of the Agreement.
8. CONFIDENTIAL INFORMATION AND NON-DISCLOSURE
8.1. Confidential Information Defined. As used herein, the term “Confidential Information” shall mean and include, without limitation, any and all trade secrets, secret processes, marketing data, marketing plans, marketing strategies, customer names and addresses, prospective customer lists, data concerning the Company’s products and methods, computer software, files and documents, and any other information of a similar nature disclosed to the Referrer or otherwise made known to him as a consequence of or through his relationship with the Company.
8.2. Confidential Information Belongs to the Company. All notes, data reference materials, memoranda, documentation and records in any way incorporating or reflecting any of the Confidential Information shall belong exclusively to the Company, and the Referrer agrees to return the originals and all copies of such materials in his possession, custody or control to the Company upon request or upon termination or expiration of the Term of this Agreement.
8.3. Confidentiality Obligation. The Referrer agrees during the Term of this Agreement and thereafter to hold in confidence and not to reveal directly or indirectly, report, publish, disclose or transfer any of the Confidential Information to any other person or entity, or utilize any of the Confidential Information for any purpose, except in the course of Services performed under this Agreement.
8.4. Injunctive Relief in Event of Breach. Because of the unique nature of the Confidential Information, the undersigned understands and agrees that the Company will suffer irreparable harm if the Referrer fails to comply with any of his obligations under this Section 8, and that monetary damages will be inadequate to compensate the Company for such breach. Accordingly, the Referrer agrees that the Company will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief to enforce the terms of this Section 8.
9. SEVERABILITY
9.1. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the Parties’ intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable, and the remainder of the provisions of this Agreement shall in no way be affected, impaired or invalidated as a result.
10. LIMITATION OF LIABILITY
10.1. Neither Party hereto will be liable to the other Party for indirect, incidental, consequential, special or exemplary damages (even if such Party has been advised of the possibility of such damages), such as, but not limited to, loss of revenue or anticipated profits or lost business.
10.2. A Party’s failure to bring a claim against the other party within 1 year after the date on which the claiming Party becomes aware of the existence of a potential claim constitutes a waiver of such claim.
11. MODIFICATIONS
11.1. Except where provision for modification is made elsewhere in this Agreement, all articles of this Agreement may be modified through amendments to the Agreement.
12. NOTICES
12.1. Any notices or delivery required here shall be deemed completed when hand-delivered, delivered by agent, or seven (7) days after being placed in the post, postage prepaid, to the Parties at the addresses contained in this Agreement or as the Parties may later designate in writing at the address provided by the Parties.
13. FORCE MAJEURE
13.1. For purposes of this section, “force majeure” means an event beyond the control of either Party, which by its nature could not have been foreseen by such Party, or, if it could have been foreseen, was unavoidable, and includes without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) and failure of energy sources.
13.2. Neither Party shall be under any liability for failure to fulfill any obligation under this Agreement, so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered, or delayed as a consequence of circumstances of force majeure, provided that such Party shall have exercised all due diligence to minimize to the greatest extent possible the effect of force majeure on its obligations hereunder.
14. TERMINATION
14.1. The Termination. The present Agreement shall be automatically terminated at the expiration of the period of the present Agreement unless the Agreement is renewed at the end of the mentioned Term.
14.2. However, both the Parties shall have the right to terminate the present Agreement by providing each other with a prior written notice of 30 days.
15. GOVERNING LAW AND JURISDICTION
15.1. This Agreement shall be construed and enforced in accordance with the laws of Lee County, Florida.
15.2. The Parties submit to the jurisdiction of the courts of Lee County, Florida for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement.
16. MEDIATION AND ARBITRATION
16.1. In the event a dispute arises out of or in connection with this Agreement, the Parties shall attempt to resolve the dispute through friendly consultation.
16.2. If the dispute is not resolved within a period of 60 days, then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues shall be submitted to final and binding arbitration in accordance with the laws of Lee County, Florida. The arbitrator’s award shall be final, and judgment may be entered upon it by any court having jurisdiction within Lee County, Florida.
17. INDEMNIFICATION
17.1. A Party shall be indemnified and held harmless by the other Party from and against all claims of any nature whatsoever arising out of the other Party’s performance.
17.2. A Party shall not be entitled to indemnification under this section for liability arising out of gross negligence or willful misconduct of the Party or the breach by the Party of any provisions of this Agreement.
18. ENTIRE AGREEMENT
18.1. This Agreement contains the entire Agreement between the Parties. All negotiations and understandings have been included in this Agreement. Statements or representations which may have been made by any Party to this Agreement in the negotiation stages of this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement shall bind the Parties.
