This Palette.fm Referral Agreement (“Agreement”) is entered into in Paris, France, as of the date on which You click the “Sign up” button on getrewardful.com, between You and Palette.fm, a French corporation (“EMIL WALLNER”), with its headquarters located in Paris. Capitalized terms are defined throughout this Agreement and in Section 7. For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. AGREEMENT SUBJECT TO APPROVAL.
The effectiveness of this Agreement is subject to Palette.fm’s approval in writing (via email) of your application for participation in the Palette.fm Referral Program (“Approval”), and this Agreement shall commence on the date of the Approval (“Effective Date”). Palette.fm may reject or decline to accept your application for any or no reason at its sole discretion. Palette.fm may conduct background checks and other screening measures of any sort in connection with your application. If Palette.fm approves your application, You may refer sales leads within the territory to Palette.fm during the term and in accordance with all terms and conditions of this Agreement, to enable Palette.fm to solicit orders for Palette.fm products and/or services (“Products”).
2. LIMITATIONS ON ACTIVITIES.
2.1 Limitations on Activities. Your activities under this Referral Agreement shall be limited as follows:
2.1.1 You shall conduct all of your business in your own name and in accordance with the highest business standards, acting dutifully, in good faith and in compliance with all laws (as set forth in Section 6.6), and not perform any act which would or might reflect adversely upon the Products or the business, integrity or goodwill of Palette.fm.
2.1.2 You shall not be, or purport to be, authorized to legally represent Palette.fm or to conduct negotiations on behalf of Palette.fm. You shall not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of Palette.fm or register this Agreement under local registered agency law nor shall Palette.fm be liable for any acts, omissions to act, contracts, commitments, promises or representations made by You.
2.1.3 You shall not use any trademarks, names or other identifiers owned or used by Palette.fm
(“Marks”), except that You may refer to Palette.fm and the Products in conversations and written correspondence with potential customers in the same manner as Palette.fm does in its own marketing materials and website. Any other use of Marks (e.g., on Your website) has to be designed in compliance with Palette.fm trademark usage guidelines, including but not limited to Palette.fm’s marketing guidelines and be pre-approved by Palette.fm in writing.
2.1.4 You are an independent contractor, and nothing contained in this Agreement shall be construed to (a) give either party the power to direct and control the day-to-day activities of the other; (b) create a principal-agent or employer-employee relationship; or (c) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint undertaking.
2.1.5 All financial and other obligations associated with Your business are solely your responsibility. As an independent contractor, the mode, manner and method used by you shall be under Your sole control and You shall be solely responsible for risks incurred in the operation of Your business and the benefits thereof. You shall bear all of your own expenses in connection with the performance of this Agreement and will not be entitled to reimbursement of any such expenses by Palette.fm.
2.1.6 You shall not make any representations or other statements about Products, prices or business practices, except that You shall forward to potential customers (i) unmodified marketing materials provided by Palette.fm and (ii) references to Palette.fm’s standard conditions of sale, as published by Palette.fm on its website or otherwise.
2.2 No License. You acknowledge and agree that no license is granted under this Agreement to use or access any Products, any of Palette.fm’s proprietary technologies embodied therein, or any data, information or other content provided thereby. As between the parties, Palette.fm retains all right, title and interest in and to the Products 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 You acknowledge that You neither own nor acquire any rights in or to the Products.
2.3 Non Exclusive Referral 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 You establish a Commissionable Lead (defined below) with Palette.fm, You will not refer a direct competitor of Palette.fm to such Commissionable Lead. You will not enter into an agreement with a third party the effect of which would prohibit your submission of a Proposed Lead (defined below) pursuant to this Agreement.
2.4 As a Palette.fm affiliate, you are prohibited from promoting our products or services on any website or platform that contains sexually explicit or pornographic content. This includes, but is not limited to, sites that feature adult videos, images, or stories, as well as sites that promote or facilitate prostitution or escort services.
2.5 As a Palette.fm affiliate, you are prohibited from using paid advertising methods to drive traffic to your affiliate link. This includes, but is not limited to, purchasing ads on search engines, social media platforms, or other websites to promote Palette.fm products or services. Additionally, we expect all of our affiliates to conduct their business in an ethical and professional manner, and to comply with all applicable laws and regulations at all times. Furthermore, we expect our affiliates to act in good faith, avoiding any deceptive or misleading practices, and to accurately represent our products and services. Violation of this policy will result in immediate termination of your affiliate agreement with Palette.fm.
3. REFERRALS.
3.1 Submission of Leads. Your lead submissions, referred to as ( "CMLF") will be automatically tracked through getrewardful.com, Palette.fm's affiliate tracking platform. You will not be required to submit any additional forms or assist in making contact with the Proposed Lead.
4. COMMISSIONS.
4.1 Commissionable Leads. A Proposed Lead qualifies as commissionable (“Commissionable Lead”)
only if:
4.1.1 You have submitted an CMLF for the Proposed Lead in accordance with Section 3.1; and
4.1.2 Palette.fm has accepted the Proposed Lead as a Commissionable Lead (i.e., not rejected the Proposed Lead as set forth in Section 3.2, or otherwise).
4.2 Commissions and Payment. Subject to Your compliance with all terms and conditions of this Agreement, Palette.fm will pay you commissions equal to twenty five percent (30%) of Lead Referral Revenue (defined below). Commission payments (less any applicable withholding taxes or other levies) will be due on the last day of the month following the quarter in which Palette.fm receives payment of the Lead Referral Revenue. Please note that to be eligible for commission payments, the total commission amount must reach a threshold of at least $100. Also, commissions will not be rewarded for payments that are refunded.
4.3 Reports. Within thirty (30) days after the end of each calendar quarter during which You have submitted One (1) Commissionable Leads, Palette.fm will issue quarterly reports to You by e-mail, which will show the Lead Referral Revenue generated by each Commissionable Lead and the commission amounts earned by You as a result. Each report shall be deemed final and accepted by you unless Palette.fm receives a detailed written objection within thirty (30) days of Your receipt of Palette.fm’s report.
4.4 Modifications. Palette.fm may modify the CMLF submission process and the percentage amounts and conditions relating to commissions upon thirty (30) calendar days written notice. Such changes will only affect CMLFs submitted after said thirty (30) day period.
4.5 Commissions After Termination. Except in the event of termination for breach by you, Palette.fm will continue to pay you commissions for the duration of the applicable referral payment period in accordance with Section on Lead Referral Revenue received following termination of the Agreement for Commissionable Leads accepted prior to such termination, and Palette.fm will continue to issue reports in accordance with Section 4.3 through such time.
4.6 No Other Payments. Except as expressly provided in this Section, you are not entitled to any fees, reimbursements or other payments. You shall promptly refund to Palette.fm any overpayments (e.g., Referral Fees on Lead Referral Revenue that was reduced due to returns by the customer).
5. TERM AND TERMINATION.
5.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect until terminated.
5.2 Termination for Convenience. This Agreement may be terminated by either party for any or no reason upon written notice to the other party thirty (30) days prior to the desired termination date (or with such minimum advance notice as required by mandatory applicable law). Neither party shall have any expectation as to the minimum term of this Agreement.
5.3 Termination for Cause. Either party may terminate this Agreement, effective immediately, (a) in the event of a material breach by the other party, which the other party fails to cure within five (5) business days of receipt of a written request to cure from the other party, or (b) if the other party becomes insolvent, makes any assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks
the protection of, or has a proceeding instituted against it, under the bankruptcy code or any similar statute. If, at the time of Your acceptance of this Agreement or any time thereafter, Palette.fm would be prohibited from doing business with You under French export regulations and controls, this Agreement shall automatically be null and void.
5.4 Effect of Termination. Sections 2, 4.5, 4.6, 5.4, and 6 shall survive termination of this Agreement.
Upon termination of this Agreement for any reason, You shall immediately cease the use of all
Palette.fm brochures, literature, documentation and other materials within Your control and shall return such materials to Palette.fm within ten (10) business days. Except as provided in Section 4.5, You shall have no rights or claims against Palette.fm in connection with termination, expiration or non-renewal of this Agreement; in particular, without any limitation, You hereby irrevocably waive any rights to severance or compensation for lost opportunities or investments to the maximum extent permissible under applicable law.
6. MISCELLANEOUS.
6.1 Governing Law and Arbitration.
6.1.1 This Agreement and any dispute arising out of or in connection with this Agreement
(“Dispute”) will be governed as to all matters, including, but not limited to the validity, construction and performance of this Agreement, by and under the laws French law, France, without giving effect to conflict of laws principles thereof.
6.1.2 Each party agrees that before it seeks mediation, arbitration, or any other form of legal relief it shall provide written notice to the other of the specific issues in dispute (and referencing the specific portions of the Agreement which are allegedly being breached). Within thirty days after such notice, knowledgeable executives of the parties shall hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith to resolve the Dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section shall not apply prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, or trade secrets.
(a) Mediation. Except as provided herein, any and all Disputes arising out of or relating to this Agreement shall be submitted to JAMS for mediation before arbitration or any other form of legal relief may be instituted. Mediation may be commenced by a party providing JAMS a written request for mediation setting forth the subject of the Dispute and the relief requested. The parties will cooperate with JAMS in selecting a single mediator and scheduling a mediation, which should take place within 45 days following a request for mediation. The mediator shall be a retired judge who has had experience with technology disputes. The parties agree that they will participate in the mediation in good faith and share equally in its costs. The mediation shall take place in Paris, France.
(b) Arbitration. Except as provided herein, any Dispute arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Paris France and before a single arbitrator. The arbitrator selected shall be a retired judge who has had experience with technology disputes. In any arbitration arising out of or related to this Agreement, the parties agree the arbitrator is not empowered to award punitive or exemplary damages, and the parties waive any right to recover any such damages. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures if the amount in dispute exceeds $250,000 USD and its JAMS Streamlined Arbitration Rules and Procedures when lesser amounts are in issue. The arbitrator shall issue a written reasoned decision. Each party shall bear their own costs in connection with the arbitration, although the arbitrator shall award the prevailing party its reasonable costs and attorneys’ fees.
6.1.3 Either party may, at its sole discretion, seek preliminary judicial relief in any court of competent jurisdiction (including, but not limited to, preliminary injunctive relief). Also, the provisions of this Section may be enforced by any court of competent jurisdiction.
6.1.4 If it is necessary for either party to retain the services of an attorney or attorneys to enforce the terms of this Agreement or to file an action to enforce any of the terms, conditions or rights contained herein, or to defend any action, then the prevailing party in any such action will be entitled to recover from the other party its reasonable fees for attorneys and expert witnesses, plus such court costs and expenses as may be fixed by any arbitration panel or court of competent jurisdiction.
6.2 No Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Neither party will be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of the party against which such waiver is asserted.
6.3 Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent possible to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect.
6.4 Notices. Except as otherwise expressly provided herein, all notices, approvals, consents and other communications required or permitted under this Agreement will be invalid unless made in writing and given (a) by Palette.fm via e-mail or (b) by you via email to emil@palette.fm.
6.5 Assignment. You may not assign, subcontract or delegate this Agreement or any of Your rights or obligations hereunder, in whole or in part, including without limitation by operation of law, without Palette.fm’s prior written consent. Any attempt to assign this Agreement without such consent will be null and void. Palette.fm may assign this Agreement and subcontract or delegate its obligations hereunder to any third party with or without Your consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.
6.6 Compliance.
6.6.1 You represent and warrant that (a) You will conduct Your business activities in a legal and ethical manner; (b) You have submitted and will submit complete and truthful information in connection with your application and all referrals; (c) You will submit all filings and obtain any approvals that may be necessary for You to perform Your obligations under this Agreement, (d) You will commit no act that would reflect unfavorably on Palette.fm; (e) You are not a party with whom Palette.fm is prohibited from doing business under French export regulations and controls; and (f) You will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with Your performance of this Agreement, including without limitation, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws.
6.6.2 You will comply with all export control and anti-boycott laws and regulations of the France. In particular, without limitation, You will refrain from (a) referring Proposed Leads that could be suspected of engaging in re-exports that would be illegal under French law, and (b) disclosing any technical information related to Products to prohibited persons or destinations in violation of French law. You certify that neither Products nor any technical data related thereto nor the direct product thereof are intended (a) to be used for any purpose prohibited by the applicable export laws or regulations, including but not limited to nuclear proliferation, or (b) to be shipped or exported, either directly or indirectly, to any country to which such shipment is prohibited by the applicable export laws or regulations.
6.6.3 You acknowledge that any sums paid to You under this Agreement are for Your own account and that, except as appropriate to carry out Your duties set forth herein in a legal manner, You did not, have no obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or any thing of value to any other person in connection with the performance of Your referral activities hereunder. In particular, without limitation, You agree not to take any actions that would cause You or Palette.fm to violate the French Foreign Corrupt Practices Act or any other anti- bribery law.
6.7 Indemnification. You shall indemnify and hold Palette.fm harmless from and against any and all third party claims against Palette.fm arising out of any act, default, misrepresentation or any omission on Your part (including, without limitation, negligence and breach of this Agreement), or any of Your agents, employees or representatives, directly or indirectly relating to this Agreement, including without limitation any claims relating to allegations, actions or proceedings for breach of contract or warranty, regulatory or other legal claims, claims for bodily injury (including death) and damage to property.
6.8 Non-Solicitation. To the extent permissible under applicable law, you are prohibited from soliciting any of the employees of Palette.fm (either directly or through agents), without written permission of Palette.fm, during the term of this Agreement and for a period of one (1) year following its termination.
6.9 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
6.10 Entire Agreement and Amendment. This Agreement, including all exhibits hereto, constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous representations, discussions, negotiations, and agreements, whether written or oral, relating to its subject matter. Any amendments or renewals to this Agreement shall be invalid unless made in writing that is signed by duly authorized representatives of both parties. In the event of any additional or inconsistent terms contained in CMLFs, Referral Confirmations or other communications, the terms and conditions in this Agreement shall prevail unless Palette.fm specifically identifies the section(s) of this Agreement that Palette.fm intends to override in a writing signed by Palette.fm.
6.11 Limitations of Liability. TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW, PALETTE.FM WILL NOT 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. IN NO EVENT WILL PALETTE.FM’S LIABILITY UNDER THIS AGREEMENT EXCEED THE PAYMENTS PAID BY PALETTE.FM TO YOU DURING THE PRECEDING TWELVE MONTHS. THIS SECTION IS SEVERABLE AND SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT.
7. DEFINITIONS.
“Commissionable Period” means, in respect of a Commissionable Lead, a period of one (1) year from Your submission of the CMLF for such Commissionable Lead.
“Commissionable Product” means Palette.fm’s browser-based service.
“Lead Referral Revenue” means any payments actually received by Palette.fm from a Commissionable Lead for the fees under a subscription agreement or other ordering document between Palette.fm and the Commissionable Lead entered into during the Commissionable Period for the Commissionable Lead’s first order of a Commissionable Product, minus any taxes, subsequently credited charges, write-offs, refunds or charge backs. For the avoidance of doubt, Lead Referral Revenue does not include any amounts received for follow-up orders, additional sales, renewals, or for products or services that are not
Commissionable Products at the time of the relevant Referral Confirmation, such as professional services, support services, training services or third party software products purchased by a Commissionable Lead, nor does it include amounts that are owed by the Commissionable Lead but have not actually been received by Palette.fm.
“Territory” means the geographic area(s) in which Your Proposed Leads shall be located, and which shall be determined in Palette.fm’s sole discretion, whose description is as follows: the entire world.
BY SIGNING UP, YOU ARE REPRESENTING THAT (1) YOU HAVE SUBMITTED TRUE AND COMPLETE INFORMATION IN CONNECTION WITH YOUR APPLICATION AND (2) YOU ARE ENTERING INTO THIS AGREEMENT ON YOUR OWN BEHALF OR THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR OTHER LEGAL ENTITY.