Referral Program Terms and Conditions
These Terms and Conditions (or “The Agreement”) govern your use of the Mitra 9 Referral Program, except where we expressly state that separate terms (and not these) apply. When you create a Mitra 9 affiliate account, you agree to these terms upon the date of the account creation (the “Effective Date”). MITRA-9 and Affiliate may collectively be referred to herein as the “Parties” and each as a “Party”. The Affiliate agrees to be bound by this Agreement and the exhibits attached as amended by Mitra 9 Brands LCC (“MITRA 9”) from time to time.
WHEREAS, MITRA-9 is engaged in the business of manufacturing and supplying certain Kava- and Kratom-based canned beverage products and distributing same through independent distributors in various areas (the “Business”);
WHEREAS, MITRA-9 requires referral services in order to identify potential customers for the Business and Affiliate is willing to provide such referral services; and
WHEREAS, the Parties wish to document a relationship between the Parties pursuant which Affiliate may provide referrals to MITRA-9 of potential customers for the Business (hereinafter, a “Referral”) and be compensated for such Referrals.
NOW, THEREFORE, in consideration of the mutual promises made herein, the Parties agree as follows:
Section 1. Duties and Performance of Affiliate
1.1 From time to time, Affiliate may identify (including via email to a point-of-contact designated by MITRA-9) a potential Referral to MITRA-9, based on such qualification criteria as may be established by MITRA-9 from time to time in its sole discretion. Affiliate shall undertake the foregoing through networking and lead generation, pursuant to which Affiliate shall (i) arrange meetings with potential and existing Referrals; (ii) presenting MITRA-9’s products benefits and key features to such potential and existing Referrals; (iii) establishing and maintaining solid working relationships with such potential and existing Referrals; and (iv) providing follow diligence to ensure that the experience of such potential and existing Referrals was positive and in accordance with expectations. Affiliate shall follow the processes established in Company’s systems and platforms for logging referrals (i.e., currently GoAffPro Affiliate software) (the “Company CRM”) to manage the onboarding of a potential Referral. MITRA-9 shall have ten (10) business days from Affiliate’s initial logging of a potential Referral to review and determine if there are any pre-existing relationships with such potential Referral or conflicts at MITRA-9. A Referral may be declined for any good-faith reason, including, but not limited to, because MITRA-9 has already established contact with the Referral, or the Referral is an existing customer of MITRA-9 (whether directly or through an agency), or the Referral has already been referred to MITRA-9 by a third party. If MITRA-9 approves the Referral via the Company CRM, Affiliate shall further log complete details with respect to such Referral in the Company CRM, including, without limitation, providing contact information for the Referral, an introduction of the Referral to a contact at MITRA-9 (as designated by MITRA-9), and a general summary of the potential business the Referral is interested in related to MITRA-9 and Business. Upon receipt Affiliate will act in good faith to engage such Referral as a client of MITRA-9 and MITRA-9 shall support such efforts.
1.2 The Parties shall adhere to and comply with all applicable national and foreign laws, treaties and regulations in connection with its performance of its obligations pursuant to the Agreement, including those related to data privacy, international communications and the transmission of technical or personal data, as well as the Foreign Corrupt Practices Act, as may be amended from time to time. Additionally, Affiliate shall adhere to the Conflicts of Interest Guidelines attached hereto as Exhibit A.
1.3 Affiliate shall be available for an initial kickoff meeting to facilitate the introduction of the Referral to MITRA-9 and such subsequent meetings as may be requested by MITRA-9 and shall work directly with a point-of-contact designed by MITRA-9 to negotiate contracts with Referrals and provide consultation and advice as to the business strategy to secure the Referral as a customer.
1.4 Affiliate shall, if instructed by MITRA-9, use only marketing materials and related documents that have been provided by MITRA-9, and shall act at all times in accordance with MITRA-9’s policies with respect to the use of MITRA-9’s logos and marketing materials.
1.6 Affiliate shall act at all times in accordance with MITRA-9’s policies with respect to the treatment of customers and potential customers, including without limitation Referrals, as may be promulgated from time to time by MITRA-9 upon written notice to Affiliate, including without limitation pricing policies with respect to products and services available from the Business, and policies with respect to the terms and conditions applicable to MITRA-9 customers.
1.7 Affiliate shall provide a monthly pipeline report of Referrals, including the current state of negotiations with Referrals and the potential budget opportunity associated with such Referral.
1.8 Affiliate agrees that they will not engage in any pattern of conduct that involves the making or publishing of written or oral statements or remarks (including, without limitation, the repetition or distribution of derogatory rumors, allegations, negative reports or comments) that are disparaging, deleterious or damaging to the integrity, reputation or good will of MITRA-9 or its respective management or products and services.
1.9 Without the pre-approval of MITRA-9, Affiliate shall extend no warranties or guarantees, orally or in writing, in the name of MITRA-9 or that would bind MITRA-9 with respect to the performance, quality, merchantability or fitness for a particular purpose of its products or services.
1.10 Affiliate shall be entitled to compensation as provided pursuant to Section 2 hereunder only for those Referrals that MITRA-9 accepts as described in Section 1.1 above and that enter into an agreement with MITRA-9 (each, a “Customer Agreement”) at any time following such Referral’s first fully paid order with MITRA-9 through the period that is six (6) months thereafter. Following the execution of a Customer Agreement between Referral and MITRA-9 during the foregoing timeframe, such Referral will be deemed a “Qualified Referral.”
Section 2. Compensation
2.1 MITRA-9 shall pay Affiliate a Commission (as defined in Section 2.2 below), for each Qualified Referral. The total Commission amount owed to Affiliate hereunder shall be payable thirty (30) days from the end of the calendar month in which the Gross Revenue (as defined below) for which the Commission is payable is collected from the Qualified Referral by MITRA-9.
2.2 In accordance with and subject to the terms of this Section 2, MITRA-9 will pay Affiliate ten percent (10%) of the Net Revenue (as defined below) collected from each Qualified Online Referral commencing on the date of such Qualified Referral’s first fully paid order with MITRA-9 and continuing for six (6) months thereafter (the “Commissionable Period”). For example, if MITRA-9 collects $200,000 USD in Net Revenue from a Qualified Referral during the Commissionable Period, Affiliate shall receive a Commission of $14,000 USD. The Commission shall be payable with respect to all Net Revenue actually collected from a Qualified Referral during the Commissionable Period. After the Commissionable Period, no additional Commissions shall be payable with respect to that Qualified Referral. For purposes of this Agreement, “Net Revenue” means the actual gross revenue earned and collected by MITRA-9 from a Qualified Referral, less (i) charge backs, returns, collection accounts, and bad debt; (ii) any tax charged by any government of competent jurisdiction (other than MITRA-9’s income tax); and (iii) any other pass through costs.
2.3 Affiliate shall be solely responsible for all costs and expenses incurred by Affiliate in connection with the performance of its obligations hereunder unless otherwise agreed in advance and in writing by MITRA-9. Except as otherwise agreed pursuant to this Section, Affiliate’s sole compensation for the performance of its obligations hereunder shall be the Commission.
2.5 Notwithstanding any expiration or termination of the Agreement, MITRA-9 shall be obligated to pay the Commission to Affiliate for a specific Qualified Referral in accordance with Section 2.2 above. In the event this Agreement is terminated as a result of a breach of this Agreement by Affiliate, Affiliate shall not receive any new Commissions earned after the date of termination, but Commissions earned before the termination that are still within the Commissionable Period shall continue to be paid until the end of the Commissionable Period with respect thereto.
Section 3. Representations and Warranties
3.1 Each party represents and warrants that (i) it has all requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder, (ii) it is duly organized and in good standing under the laws of its jurisdiction of organization, (iii) it shall at all times abide by all laws of each and every jurisdiction it is subject to pursuant to the performance by it of its obligations under this Agreement , and (iv) it shall not share with any third party any Confidential Information disclosed to it pursuantto this Agreement.
3.2 Affiliate agrees that nothing in this Agreement shall be deemed to prohibit MITRA-9 from fully exercising any and/or all its rights pursuant to the terms of the Customer Agreement in whole or in part and that the exercise of such rights may impact the Commissions payable to Affiliate.
3.3 Affiliate agrees that nothing in this Agreement shall be deemed to prohibit MITRA-9 from declining to take on any particular project, work or deliverable which would result in Net Revenue being earned, as determined by MITRA-9 in its sole and exclusive discretion.
3.4 MITRA-9 MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT WITH RESPECT TO THE ITS SERVICES PROVIDED TO QUALIFIED REFERRALS HEREUNDER.
Section 4. Indemnification
Each party agrees to indemnify, defend and hold the other party and its officers, directors, employees, contractors, successors and assigns harmless from any and all actions, claims, demands, costs, liabilities, expenses (including attorney fees) and damages that arise directly or indirectly out of any third-party claim alleging the breach of any agreement, representation or warranty hereunder. Indemnification under this Section 4 shall survive termination of this Agreement.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR ECONOMIC CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, ANTICIPATED SAVINGS, LOSS OF GOODWILL, REVENUE, OR LOSS OF OR DAMAGE TO DATA THAT IS NOT WITHIN SUCH PARTY’S CUSTODY, SUFFERED OR INCURRED BY THE OTHER PARTY OR A THIRD PARTY IN CONNECTION WITH PERFORMANCE OR NON-PERFORMANCE, ARISING UNDER OR RELATED IN ANY WAY TO THIS AGREEMENT, EVEN IF THE PARTY KNEW, SHOULD HAVE KNOWN OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES OR EVEN IN THE EVENT OF THE FAILURE OF AN ESSENTIAL REMEDY, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT DAMAGES WERE FORESEEABLE. THE TERMS OF THIS LIMITATION OF LIABILITY SECTION WILL NOT APPLY TO AMOUNTS PAYABLE TO EITHER PARTY UNDER THIS AGREEMENT, A BREACH OF THE CONFIDENTIALITY OBLIGATIONS, OR INDEMNITY OBLIGATIONS.
Section 5. Term and Termination
5.1 The term of this Agreement will be for a period of one (1) year (the “Term”), commencing on the Effective Date. Unless either Party provides written notice stating otherwise, the Term of this Agreement shall be renewed for successive one-year terms, unless either Party hereto shall provide notice of non-extension at least fourteen (14) days prior to the end of the then-current Term.
5.2 The provisions of Sections 2 through 11 shall survive termination of this Agreement to the fullest extent possible and appropriate to fulfill the Parties intentions under the Agreement.
Section 6. Independent Contractors
6.1 The Parties acknowledge that the relationship of MITRA-9 and Affiliate is that of independent contractors and that nothing contained in this Agreement shall be construed to place MITRA-9 and Affiliate in the relationship of principal and agent, master and servant, partners, or joint venturers. It is expressly understood and agreed that this Agreement does not grant either Party an exclusive privilege to provide to the other Party any services of the type described in this Agreement. Affiliate agrees to defend, indemnify and hold MITRA-9 harmless from any and all claims made by any entity on account of (i) an alleged failure by Affiliate to satisfy any such tax or withholding obligations applicable to Affiliate, and/or (ii) resulting from Affiliate’s being determined not to be an independent contractor.
6.2 Affiliate has no authority, without the prior written consent of MITRA-9 (email sufficient), to bind MITRA-9 to any contract, representation, understanding, act or deed concerning MITRA-9 or any of the services offered by MITRA-9 to a Referral. Affiliate shall make no representations or warranties concerning the services or Affiliate’s relationship with MITRA-9, unless MITRA-9 authorizes such warranty or representation in writing (email sufficing). In addition, Affiliate shall not make any representations or warranties concerning prices, terms or delivery, performance of the services, terms of payment, or conditions of sales except to the extent such representations are authorized in writing by MITRA-9.
6.3 This Agreement is not exclusive, and MITRA-9 may appoint other affiliates and sales representatives for the services within any territory that Affiliate does business.
Section 7. Confidentiality
7.1 During the Term of this Agreement, each Party (the “Recipient”) may have access to certain non-public information of the other Party (the “Disclosing Party”), which information a reasonable person would consider confidential or that is marked as “confidential” or “proprietary” by the Disclosing Party, including clients lists, business opportunities, terms of service, price lists, and other trade secrets as understood under applicable law, collectively “Confidential Information.” The existence of this Agreement in all respects shall also be deemed Confidential Information. During the Term of this Agreement and for a period of two (2) years thereafter, the Recipient agrees not to disclose any Confidential Information to any third parties or to use any Confidential Information for any purpose except to carry out its obligations under this Agreement. The Recipient shall make every effort to keep such Confidential Information confidential, using the same degree of care the Recipient uses to protect its own Confidential Information of a similar nature, as long as it uses at least reasonable care. Neither Party shall make any public statement, issue any press release or any other type of announcement or statement relating to the terms, conditions or existence of this Agreement without the prior written approval of the other Party. Notwithstanding the above, Confidential Information does not include information that:
- was in the public domain at the time it was disclosed or has entered the public domain through no fault of the Recipient;
- was known to the Recipient, without restriction, at the time of disclosure;
- was independently developed by or on behalf of the Recipient without any use of the Confidential Information of the Disclosing Party, as evidenced by the Recipient’s records;
- becomes known to the Recipient, without restriction, from a source other than the Disclosing Party without breach of this Agreement by the Recipient; and
- is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided the Recipient has notified the Disclosing Party of an obligation to disclose such information and the Disclosing Party has been provided with the opportunity to oppose such disclosure or obtain a protective order.
7.2 Each Party agrees to return or destroy any materials and/or documents, regardless of the media (written, electronic, or otherwise) in which they were disclosed, of the other Party hereto, without making or taking copies thereof, upon expiration or termination of this Agreement, irrespective of whether such materials and/or documents relate to or concern Confidential Information, provided however that if a Party is unable to meet its obligations pursuant to this Section 7.2 in order to maintain compliance with any valid court order or applicable law, the other terms of this Agreement with respect to Confidential Information shall continue in full force and effect until such time as such Party is no longer obligated to maintain such information, at which time such Party will immediately comply with this Section 7.2 without further notice or request. Notwithstanding the foregoing, MITRA-9 shall retain full ownership of the relationship with all Qualified Referrals, including all information relating to such Qualified Referrals.
Section 8. Intellectual Property
Affiliate agrees that MITRA-9 retains ownership rights in and to the Business and all technology and intellectual property rights therein, including without limitation any patent rights, trademark, service mark, trade dress, advertising, and any associated goodwill, whether presently existing or later developed (collectively “MITRA-9 Intellectual Property”). Affiliate shall undertake no action that frustrates such ownership by MITRA-9. Affiliate agrees to sign any document as reasonably required to effect recording or protection of any such MITRA-9 Intellectual Property.
Section 9. Non-Solicitation
9.1 Non-solicitation. Affiliate shall refrain from soliciting business and contracts from sources not their own, which have been made available to them by MITRA-9, without the express permission of MITRA-9, except in furtherance of its performance of this Agreement.
9.2 Non-circumvention. Affiliate acknowledges and agrees that it shall make no effort to circumvent MITRA-9 so as to gain commissions, fees, remunerations, or considerations to their own benefit, while excluding equal or agreed to benefits.
9.3 Intentionally omitted.
9.4 Non-Disparagement. Affiliate agrees that they will not engage in any pattern of conduct that involves the making or publishing of written or oral statements or remarks (including, without limitation, the repetition or distribution of derogatory rumors, allegations, negative reports, or comments) that are disparaging, deleterious or damaging to the integrity, reputation or good will of MITRA-9 or its respective management or products and services.
9.5 Exceptions. Notwithstanding anything to the contrary set forth in this Section 9, nothing set forth above shall be deemed to prevent and/or prohibit Affiliate from engaging with any affiliates of MITRA-9 to perform services, including services that are the same or similar to those provided to MITRA-9 hereunder.
Section 10. Miscellaneous
10.1 Governing Law; Jurisdiction. This Agreement is to be construed in accordance with and governed by the internal laws of the State of Florida, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State of Florida to the rights and duties of the Parties. Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement may be brought against any of the Parties only in the courts of the State of Florida, Lee County, or, if it has or can acquire the necessary jurisdiction, in the United States Middle District Court of Florida. Each of the Parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein. THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL IN ANY ACTION BETWEEN THE PARTIES.
10.2 Assignment. Affiliate shall not assign or otherwise transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of MITRA-9. MITRA-9 may assign or otherwise transfer this Agreement in its sole discretion. Any purported assignment, sale, transfer, delegation or other disposition hereunder shall be null and void in the absence of the written consent of the non-assigning Party. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. Any decision not to agree to an assignment pursuant to this Section 10.2 shall be made within ten (10) business days and shall provide the basis for such denial of assignment. If no response is received within such ten (10) business days, the assignment shall be deemed consented by the non-assigning party.
10.3 Recovery of Fees by Prevailing Party. If any legal action, including, without limitation, an action for arbitration or equitable relief, is brought by one Party against the other Party relating to this Agreement or the breach or alleged breach hereof, the prevailing Party in any final judgment or arbitration award, or the non-dismissing Party in the event of a voluntary dismissal by the Party instituting the action, will be entitled to reimbursement from the other Party for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
10.4 Equitable Relief. The Parties agree that it would be impossible or inadequate to measure and calculate the other Party’s damages from any breach of the covenants set forth in Sections 1, 4, 6.2, and 7 through 9 herein. Accordingly, each Party agrees that if the other Party breaches such sections, the non-breaching Party will have available, in addition to any other right or remedy available, the right to seek to obtain from any court of competent jurisdiction an injunction restraining such breach or threatened breach and specific performance of any such provision.
10.5 Severability. If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity of other provisions of this Agreement will not in any way be affected thereby, and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.
10.6 Waiver. A waiver of a Party’s breach of any provision of this Agreement will not operate as or be deemed to be a waiver of that Party’s prior, concurrent or subsequent breach of that or any other provision of this Agreement.
10.7 Force Majeure. Neither party will be deemed in default of this Agreement to the extent that performance of its obligations (other than payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, riots, acts of government, acts of war or terrorism, shortage of materials or supplies, failure of transportation or communications or of suppliers of goods or services, or any other cause beyond the reasonable control of such Party.
10.8 Notices. Any notice or approval desired or required to be provided to a Party hereunder will be given to such Party in writing by overnight courier (notice deemed effective the business day after such courier’s acceptance (which acceptance must occur before such courier’s required deadline) for next business day service), mail (notice deemed effective three (3) days after mailing), or e-mail (noticed deemed effective upon receipt of a return e-mail, other than an automatically generated return e-mail, indicating that the e-mail notice has been received), addressed to such Party at the address, as applicable, for such Party specified in the introductory paragraph of this Agreement, or email address, as applicable, indicated in the signature blocks below. A Party may designate a substitute address or e-mail address by written notice to the other Party hereto with the effectiveness of such notice governed by the terms of this Section 10.8. If the final day for giving notice is a Saturday, Sunday or nationally recognized holiday then the time for giving such notice will be extended to the next business day.
10.9 Counterparts. This Agreement may be executed in two or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
10.10 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and thereof, and this Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter, which shall be of no further force or effect as of the Effective Date, subject to the execution of this Agreement by both Parties hereto.
CONFLICT OF INTEREST GUIDELINES
It is the policy of Mitra-9 Brands, LLC (the “Company”) to conduct its affairs in strict compliance with the letter and spirit of the law and to adhere to the highest principles of business ethics. Accordingly, all officers, employees and independent contractors must avoid activities which are in conflict, or give the appearance of being in conflict, with these principles and with the interests of the Company. The following are potentially compromising situations which must be avoided. Any exceptions must be reported to the Managing Officer and written approval for continuation must be obtained.
- Revealing confidential information to outsiders or misusing confidential information. Unauthorized divulging of information is a violation of this policy whether or not for personal gain and whether or not harm to the Company is intended.
- Accepting or offering substantial gifts, excessive entertainment, favors or payments which may be deemed to constitute undue influence or otherwise be improper or embarrassing to the Company.
- Participating in civic or professional organizations that might involve divulging confidential information of the Company.
- Initiating or approving personnel actions affecting reward or punishment of employees or applicants where there is a family relationship or is or appears to be a personal or social involvement.
- Initiating or approving any form of personal or social harassment of employees.
- Investing or holding outside directorship in suppliers, customers, or competing companies, including financial speculations, where such investment or directorship might influence in any manner a decision or course of action of the Company.
- Borrowing from or lending to employees, customers or suppliers.
- Acquiring real estate of interest to the Company.
- Improperly using or disclosing to the Company any proprietary information or trade secrets of any former or concurrent employer or other person or entity with whom obligations of confidentiality exist.
- Unlawfully discussing prices, costs, customers, sales or markets with competing companies or their employees.
- Making any unlawful agreement with distributors with respect to prices.
- Improperly using or authorizing the use of any inventions which are the subject of patent claims of any other person or entity.
- Engaging in any conduct which is not in the best interest of the Company.
Each officer, employee and independent contractor must take every necessary action to ensure compliance with these guidelines and to bring problem areas to the attention of higher management for review. Violations of this conflict of interest policy may result in discharge without warning.