REFERRAL PARTNER AGREEMENT
This Partner Agreement (“Agreement”) is entered into by Emergence Board Games, with offices at 4946 131st PL SE, Bellevue, WA 98006 (hereinafter “Emergence”), and the referring party executing this Agreement (hereinafter “Partner”), and collectively referred hereto as the “Parties.” This Agreement is effective between Partner and Emergence as of the date Partner electronically accepts this Agreement (“Effective Date”).
WHEREAS, Emergence owns or controls the exclusive rights, including any and all copyrights, to Emergence® and Emergence: Dark Ops®, a unique multi-player board game, and wishes to grant Partner licenses thereunder, subject to certain retained rights described herein; and
WHEREAS, Partner desires to promote, market, and advertise Emergence to potential Emergence customers (“Referrals”) through its website(s) and other marketing channels, in accordance with Emergence’s Referral Program (“Program”) detailed in this Agreement; and
WHEREAS, the Program contemplated by the Agreement are of mutual interest and benefit to Emergence and Partner; and
NOW, THEREFORE, intending to be legally bound and upon the terms, conditions, and covenants hereinafter set form, Emergence and Partner agree as follows:
1.1 Subject to this Agreement and its terms and conditions, Emergence hereby grants to Partner a free, non-exclusive, non-transferable and revocable license (“License”) to market Emergence to Referrals, and to use the Emergence trademarks, logos, and Uniform Resource Locator (“URL”) provided by Emergence and listed in Exhibit A (“Licensed Marks,” as may be amended by Emergence at their discretion), and associated materials or language for the sole purpose of promoting Emergence (collectively, “Marketing Materials”).
2. PROGRAM COMMITMENT
2.1 Legal Agreements. As part of its participation in the Program and in acting as Emergence’s Partner, Partner hereby agrees and consents to the terms of this Agreement and the Program and any other requests and rules set by Emergence at its discretion, in connection with Partner’s ongoing participation in the Program and promotion of Emergence to Referrals. Partner agrees in all its activities under this Agreement, Partner shall cooperate with Emergence and act in good faith.
2.2 Liabilities. Partner shall be solely responsible for its operations in acting under this Agreement, including without limitation, the legality of Partner’s operations and materials created and used in connection with this Agreement. Emergence is not responsible for the development, operation, or content of Partner’s marketing Materials and Partner agrees to defend, indemnify, and hold Emergence harmless against any and all actions, claims, damages, causes of action, or expenses (including attorney fees) relating to the development, content, maintenance, and operation of Partner’s Marketing Materials.
2.3 Customer Relations. Emergence shall be the exclusive owner of all relations created via Partner among Emergence and Referrals with respect to the Program, including any and all information identifying Referrals.
2.4 Prohibited Activities. Partner agrees to not associate Marketing Materials or Emergence with content that is unlawful in any manner, or which is otherwise defamatory, obscene, offensive, harassing, sexually explicit, violent, discriminatory, harmful, or otherwise objectionable in Emergence’s sole discretion.
2.5 Promotion. Partner agrees to engage in continued, active promotion of Emergence using the Licensed Marks and Marketing Materials in compliance with the terms of this Agreement.
3. PROGRAM, CERTIFIED REFERRALS
3.1 “Certified Referrals” qualifies as Referrals (a) referred by Partner to Emergence, (b) who complete the referral procedure in accordance with the procedure described in Section 3.2 below, (c) who purchase one of the following Emergence Products: Early Bird Special - Emergence: Dark Ops, Emergence: Dark Ops, Early Bird Special - Combo Pack, Emergence Combo Pack, or Operative Support Level; (d) who are not rejected by Emergence, and make payment for purchase by the 29th day of October, 2017 (the “End Date”), and (e) who have not been issued a refund for purchase of Emergence Products. All Referrals will be deemed rejected by Emergence if they do not become a Certified Referral within thirty (30) days of End Date.
3.2 Referral Procedure. Each Referral shall be referred to Emergence by Partner through a unique and traceable URL provided by Emergence to Partner, which Partner may promote, market, and advertise to potential Referrals. Upon following the URL, at a Referral’s own discretion, Referral shall be provided details to fully complete and purchase Emergence Products to become a Certified Referral. A Referral’s session (“Session”) begins when the Referral follows the traceable URL provided by Emergence to Partner, and ends when the user closes the URL webpage. Referral must complete and purchase Emergence Products within a reasonable time during a Session to become a Certified Referral. Emergence shall be responsible for the sales process to all Referrals, subject to the Parties’ continued good-faith cooperation in promoting the sales process to Referral.
4.1 A copy of the Certified Referral Payment Terms (“Payment Terms”) for the Program shall be attached to the Agreement as Exhibit B. Payments for the Program shall be made by Emergence to Partner pursuant to the terms and conditions set forth in the applicable Payment Terms.
5. TERMS AND TERMINATION OF AGREEMENT
5.1 The initial term of this Agreement (the “Initial Term”) shall commence on the Effective Date and shall continue until the End Date.
5.2 This Agreement may be renewed by mutual written consent of Emergence and Partner for such additional period as the Parties may agree upon.
5.3 Emergence may terminate this Agreement, effective immediately, upon thirty (30) days prior notice to Partner. From and following the date of termination of this Agreement, Partner’s rights under this Agreement shall terminate, and Partner shall not be entitled to receive any payments under this Agreement other than payments earned or accrued prior to termination of this Agreement.
5.4 Partner may terminate this Agreement, effective immediately, upon thirty (30) days prior notice to Emergence. From and following the date of termination of this Agreement, Partner’s rights under this Agreement shall terminate, and Partner shall not be entitled to receive any payments under this Agreement other than payments earned or accrued prior to termination of this Agreement.
6.1 Agreement Amendments. Emergence may modify or amend this Agreement at its reasonable discretion by notifying Partner via email. If Partner objects to any such change, Partner may terminate this Agreement for cause. Partner’s continued participation in the Program following receipt of notice about changes to this Agreement shall constitute binding acceptance of this Agreement as amended.
6.2 Intellectual Property. Emergence and Partner acknowledge that the Products and Program is owned or controlled by Emergence and that neither the terms of this Agreement nor any activities conducted by Partner for the Program, shall be construed to grant the Partner any rights in or to the Products and Program. The License granted by Emergence to Partner under Section 1 is granted solely under the terms of this Agreement and in furtherance of its objectives. Partner’s right to use the Licensed Marks is at the discretion of Emergence and is subject to Partner’s compliance with the terms of this Agreement.
6.3 No Waiver. Either Party’s failure to exercise any rights under this Agreement shall not constitute a waiver of any right herein.
6.4 Warranties. Partner represents and warrants that it has the legal authority to enter into this Agreement and that the terms of this Agreement are not in conflict with any other agreements to which it is legally bound. Partner will not enter into any agreement or engage in any activities that would impair its or his/her ability to complete the Program in accordance with this Agreement. During the Initial Term and after termination of this Agreement for any reason whatsoever, Partner expressly undertakes not to partake in any activities that might reasonably be expected to damage the business, interests, or reputation of Emergence and will not make, publish, or allow to be made or published any disparaging remarks concerning Emergence, its representatives, or the Program.
6.5 Indemnification. Partner will indemnify, defend, and hold harmless Emergence and its subsidiaries, affiliates, officers, and employees (“Emergence Indemnitees”) from any and all costs, liabilities, losses, and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claims, penalties, suits, liabilities, or proceedings, which may be be brought by any Third Party Claims against the Emergence Indemnitees arising from (a) any failure of Partner to conduct the Program in accordance with the terms of this Agreement or any applicable law, rule, guidance, or regulation; or (b) the negligence, or willful misconduct on the part of the Partner.
6.6 Relationship. For the purposes of this Agreement, the Parties are independent contractors and nothing contained in this Agreement will be construed to place them in the relationship of partners, principal and agent, employer and employee, or joint venturers.
6.7 Force Majeure. If either Party’s performance of this Agreement is prevented, restricted or delayed (either totally or in part) for reasons beyond the affected Party’s reasonable control, the affected Party will be excused from such performance to the extent of such prevention, restriction or delay; A Party claiming a right to excused performance under this Section shall immediately give notice to the other Party of the extent of its inability to perform, which notice shall specify the occurrence beyond its reasonable control that prevents such performance.
6.8 Notices. Any notice or other communication required or permitted under this Agreement shall be made by email, by overnight courier, or certified mail during business hours, return receipt requested, and will be deemed given as of the date it is received by the receiving party. Notice shall be given to the parties at the respective addresses listed below:
If to Emergence:
Emergence Board Games
4949 131st PL SE
Bellevue, WA 98006
Attn: Billy Sheng
6.9 Understanding. This Agreement, including all exhibits thereto, shall constitute the entire understanding between the Parties with respect to the subject matter of the Program and supersedes all prior or contemporaneous agreements or understandings, oral or written.
6.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington, without giving effect to conflicts of law provisions thereof.
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PERMITTED EMERGENCE MARKS FOR USE BY PARTNER
1. Logos: Licensed Marks to be provided to Partner by Emergence.
2. Box Letter Trademarks: Emergence®, EMERGENCE®, Emergence: Dark Ops®, or EMERGENCE: DARK OPS®
CERTIFIED REFERRAL PAYMENT TERMS
1. Payee. Partner’s payee under the Agreement must be the same name as on the Partner’s IRS Form W-9.
2. Referral Payment
2.1 Upon a Referral becoming a Certified Referral, Emergence shall make payment to Partner as follows:
USD$5.00 per CR
CR = Certified Referral.
2.2 Partner shall only receive Referral Payment on a Certified Referral’s initial order and Referral Payments will accrue and be payable to Partner within sixty (60) days of the End Date.
2.3 Emergence shall keep complete and accurate records to permit Partner to confirm accuracy of all payments made pursuant to Section 2.1. Such records will be provided to Partner as of the Effective Date to no less than two (2) years of End Date.
2.4 Partner shall have the right at its own expense, to examine, in confidence, such records kept by Emergence as may be necessary to determine the correctness of any payment made pursuant to Section 2.1. If any examination performed shall indicate that any payment pursuant to Section 2.1 was underpaid, Emergence shall pay Partner the amount of any underpayment promptly. Partner will have up to 120 days after the end of the End Date to resolve any payment discrepancies.
2.5 Associated Charges. Partner shall be responsible for payment of all taxes, duties, governmental charges, and other like charges levied on the Referral Payments. Partner shall defend, indemnify, and hold Emergence harmless from and against any claims arising out or relating to all charges from Emergence’s payment of Referral Payments.