BILL Affiliate Referral Agreement
Effective Date: October 5, 2023
AP/AR AGREEMENT
This Affiliate Referral Agreement (the “Agreement”) is between you (“Company” or “You”) and Bill.com, LLC, a Delaware limited liability company, with a principal place of business located at 6220 America Center Drive, San Jose, CA 95002 (“BILL” or “Bill.com”). Bill.com and Company are referred to herein individually as a “Party” and, collectively, as the “Parties.”
By electronically accepting this Agreement, participating in any BILL affiliate program activities or clicking on “I agree” (or a similar box or button) when You sign up for a BILL Partner Account, You agree to be bound by the terms of this Agreement, including all Schedules attached hereto or otherwise referenced herein. This Agreement governs Company’s activities as an affiliate program referral partner as described herein.
The Parties agree that each of the Schedules attached hereto and listed below are incorporated herein by reference and included as part of this Agreement.
SCHEDULE 1 General Terms and Conditions
SCHEDULE 2 Implementation Responsibilities
SCHEDULE 3 Referral Procedures
SCHEDULE 4 Referral Fees
1. DEFINITIONS. For the purposes of this Agreement, the following definitions shall apply
“Agreement” means this Affiliate Partner Agreement and all Schedules attached thereto that are expressly incorporated herein by reference.
“BILL Branding Elements” shall mean the BILL trademarks, logos, or other BILL branding elements delivered by BILL to Company for use in connection with this Agreement.
“BILL Marketing Materials” shall mean BILL’s marketing materials and sales collateral that BILL makes available to Company for use by Company to market to its clients and prospective customers in accordance with this Agreement, including any modifications or changes thereto that are made by Company and/or BILL to adapt such materials to be suitable for Company’s clients and prospective customers.
“BILL Partner Account” means a BILL registration account that is created by a user in order to participate in the BILL affiliate program as described in this Agreement.
“BILL Standard Customer” means a subscriber enrolled in an account in the BILL Standard Offering that is charged a subscription fee for their BILL account (associated with the BILL Standard Offering), which is established by subscriber and tracked from a Company Referral and accepted by BILL in accordance with the qualifications requirements set forth in Schedule 3 (Referral Procedures) herein.
“BILL Standard Offering” means the bill payment and payment processing, invoicing and other cash flow management software that BILL makes generally available at www.bill.com as such is updated from time to time.
“BILL Technology” means the BILL Standard Offering and BILL Branding Elements.
“BILL Trial User” means a subscriber tracked to a Company Referral that enrolls in an account in the BILL Standard Offering (and is accepted by BILL) for a subscription trial period where the subscriber is not charged a subscription fee for their BILL account (associated with the BILL Standard Offering) during such trial period.
“Company Branding Elements” means the Company trademarks, logos, or other branding elements delivered by Company to BILL for use in connection with this Agreement.
“Company Referral” means an affiliate referral arrangement as described in this Agreement where Company may refer customers or potential customers to BILL to as set forth in Schedule 3 (Referral Procedures) herein.
“Confidential Information” means information provided by a Party (“Disclosing Party”) to the other Party (“Receiving Party”) orally or in writing concerning any data, information and other materials regarding the products, software, services, or business of a Party that is not generally known to the public. Confidential Information includes products, specifications, technology, documentation, technical information, hardware, software, data, databases, business information, financial information, reports, regulatory documents, pricing, fees, policies or procedures. The existence and terms of this Agreement shall be deemed Confidential Information, along with any discussions of the Parties or their representatives concerning the same.
2. MARKETING AND REFERRALS.
a. BILL Standard Offering. Subject to the terms and conditions of this Agreement, BILL will make available BILL Standard Offering for enrollment by Company customers in accordance with BILL’s standard enrollment process for new accounts. Each Company customer who successfully completes BILL’s enrollment process and is approved by BILL for creation of a new account shall become a direct subscriber customer of BILL and subject to BILL’s Terms of Service and Privacy Notice available on BILL’s website.
b. Implementation Responsibilities. BILL and Company will work together to perform its respective implementation responsibilities set forth in Schedule 2 (Implementation Responsibilities). Company agrees to market and promote BILL Standard Offering to Company’s customers in reasonably prominent manner designed to promote Company customers to enroll in BILL Standard Offering in accordance with the terms of Schedule 2 (Implementation Responsibilities), which may include placement of marketing messaging in relevant areas in Company’s website, online customer account, marketing materials, and sales collateral. BILL will make available to Company the BILL Marketing Materials and will collaborate with Company to adapt such materials to be suitable for Company customers.
c. Referral Procedure. Company shall adhere to the referral process set forth on Schedule 3 (Referral Procedures) in order to qualify to receive Referral Revenue Share under this Agreement.
d. Customer Consent; User Privacy. Prior to submitting any clients to BILL, Company represents that it has obtained all necessary rights and consents from such customer to share their information with BILL in connection with the marketing and sale of the BILL Standard Offering under this Agreement. Each Party represents and warrants that its privacy notices/policies are consistent with applicable federal and state laws and regulations, as may be amended from time to time, and such Party will comply with the terms of its privacy notice/policy in performing this Agreement. Company acknowledges and agrees that Company’s participation in this BILL affiliate program, including information transmitted to or stored by BILL, is governed by the BILL Privacy Notice located at: https://www.bill.com/privacy.
e. Customer Support. All Referral Clients will be entitled to receive BILL’s standard customer support that is provided to BILL direct customers.
3. PAYMENT TERMS.
a. Referral Fees. During the active term of this Agreement only, BILL will pay to Company the Referral Fee(s) set forth in Schedule 4 (Referral Revenue Share). All payments to be made hereunder shall be made in U.S. Dollars.
b. Payment Method. Referral Fee(s) earned by Company under Schedule 4 (Referral Fee(s)) will be calculated on a calendar month basis and will be paid to Company monthly, within thirty (30) days after expiration of such month.
4. LICENSES AND OWNERSHIP
a. Licenses to Branding Elements. Subject to the terms of this Agreement, BILL grants to Company a non-exclusive and non-transferable right and license to reproduce, adapt, copy, publish, display BILL Branding Elements solely for the purposes of performing its obligations under this Agreement. Subject to the terms of this Agreement, Company grants BILL, a non-exclusive and
non-transferable right and license to reproduce, adapt, copy, publish, display Company’s Branding Elements solely for the purposes of performing its obligations under this Agreement. Each Party shall comply with the other Party’s branding guidelines and requirements in connection with the use of such other Party’s Branding Elements.
b. Ownership of Technology. BILL and its licensors own and retain all right, title, and interest in and to the BILL Technology, BILL Branding Elements, and BILL Marketing Materials, and any derivative works of the foregoing (by whomever created). Company owns and retains all right, title and interest title and interest in and to all Company Branding Elements. There are no implied licenses granted by either Party to the other under this Agreement.
c. Suspension. BILL reserves the right to immediately suspend Company’s right to participate in this affiliate referral program, including BILL revoking any license rights granted to Company relating to use of the BILL Branding Elements and BILL Marketing Materials, upon notice to Company in the event: (i) Company makes any false, misleading or disparaging representations or statements with respect to BILL, its related entities or the BILL Standard Offering; and/or (ii) Company engages in any other practices which may adversely affect the reputation or credibility of BILL or its related entities. Upon such notice from BILL, Company will immediately stop using the BILL Branding Elements and BILL Marketing Materials and cease participating in any marketing and referral activities related to any BILL products or services until such issues are resolved to BILL’s written satisfaction.
5. CONFIDENTIALITY
a. Confidentiality Protection. Except as otherwise expressly authorized herein, the Receiving Party agrees to: (i) use the Confidential Information of the Disclosing Party only in connection with the purposes of this Agreement; (ii) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (iii) disclose the Disclosing Party’s Confidential Information only to those employees and contractors of the Receiving Party who have a need to know such information for the purposes of this Agreement, provided that any such employee or contractor shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party shall remain liable for any non-compliance of such employee or contractor with the terms of this Agreement. The foregoing obligations will not restrict either Party from disclosing the other Party’s Confidential Information or the terms and conditions of this Agreement: (i) pursuant to any request, order or requirement of a court, administrative agency, or other governmental body; (ii) on a confidential basis to its legal or professional financial advisors and auditors; (iii) as required under applicable securities regulations; or (iv) as necessary in good-faith disputes in litigation or arbitration provided that the disclosing party makes good faith attempts to file such information under seal or otherwise reasonably protect such information from public disclosure.
b, Return of Materials. Upon any expiration or termination of this Agreement or upon any written request, the Receiving Party shall return or reasonably destroy (at Disclosing Party’s request if technologically feasible) the Confidential Information of the Disclosing Party.
6. DISCLAIMERS & LIMITATION OF LIABILITY
a. Disclaimers. THE PRODUCTS AND SERVICES PROVIDED BY BILL ARE “AS IS” AND TO THE MAXIMUM EXTENT ALLOWED BY LAW, NEITHER BILL, ITS AFFILIATES OR ANY THIRD PARTY PROVIDER MAKES ANY REPRESENTATION, WARRANTY, CONDITION, OR UNDERTAKING, WHETHER EXPRESS, IMPLIED STATUTORY OR OTHERWISE, RELATING TO THE PRODUCTS AND/OR SERVICES OR THE RESULTS OBTAINED IN USING THEM, INCLUDING THEIR
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, OR THEIR CONTINUITY, ACCURACY, TIMELINESS OR COMPLETENESS. BILL FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BILL OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
b. Limitation of Liability. IN NO EVENT SHALL BILL BE LIABLE TO COMPANY, ANY USER, OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE BILL STANDARD OFFERING, FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE.
c. Maximum Liability. EXCEPT AS SET FORTH BELOW, EITHER PARTY’S AGGREGATE LIABILITY
TO OTHER PARTY, ANY USER, AND ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR THE BILL STANDARD OFFERING SHALL NOT EXCEED THE TOTAL FEES PAID BY BILL TO COMPANY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT(S) THAT GAVE RISE TO SUCH LIABILITY, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM OR ACTION. THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY, ANY USER, AND ANY THIRD PARTY IN CONNECTION WITH SUCH PARTY’S INDEMNITY OBLIGATIONS IN SECTION 7.A SHALL NOT EXCEED THE GREATER OF: (I) THE TOTAL FEES PAID BY BILL TO COMPANY IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS(S) THAT GAVE RISE TO SUCH LIABILITY; OR (II) TWO HUNDRED FIFTY THOUSAND U.S. DOLLARS ($250,000.00).
7. INDEMNITIES
a. Indemnity. Each Party shall defend or settle, indemnify and hold harmless the other Party and their parent, subsidiaries and affiliates and their respective employees, agents, officers, partners, and directors from any liability, damages and expenses (including court costs and reasonable attorneys’ fees) arising out of or resulting from any third-party claim based on or otherwise attributable to: (1) a claim that the indemnifying party violated a proprietary or intellectual property right of a third party; or (2) any negligence, intentional misrepresentation or intentional misconduct of the indemnifying party.
b. Indemnity Procedures. The indemnifying parties obligation in the preceding sentence is conditioned on the indemnified party: (A) providing prompt written notice of any claim (provided that failure or delay in giving such notice shall not reduce or otherwise relieve the indemnifying party of any liability it may have under this section, except to the extent that the indemnifying party is prejudiced thereby; (B) giving the indemnifying party sole control of the defense and settlement thereof, except that the indemnified party shall at all times have the right at its sole option to participate in the defense at its own expense and the indemnifying party shall not enter into any settlement that would require the indemnified party to make any payments or admit liability without the indemnified party’s prior written consent (which shall not be unreasonably withheld or delayed); and (C) providing all reasonable assistance in connection with a claim. In the event that BILL’s right to provide the services is enjoined or in BILL’s reasonable opinion is likely to be enjoined, BILL may obtain the right to continue providing the services, replace or modify the services so that they become non-infringing, or terminate this Agreement.
8. TERM AND TERMINATION
a. Termination for Convenience. Unless otherwise specified in this Agreement, either Party may terminate this Agreement for convenience at any time by providing the other Party no less than fourteen (14) days prior written notice.
b. Termination for Cause. This Agreement may be terminated by either Party: (i) upon seven (7) days’ written notice, if the other Party materially breaches any provision of this Agreement and such breach remains uncured after such seven (7) day notice period expires; or (ii) effective immediately, if the other Party ceases to do business, or otherwise terminates its business operations without a successor acceptable to the other Party; (iii) effective immediately, if the other Party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is filed against it and not dismissed within ninety (90) days; or (iv) effective immediately, upon direction from any regulatory authority to cease or materially limit performance of such Party’s obligations under this Agreement.
c. Effect of Termination. A Party’s right to terminate this Agreement shall be in addition to, and not in lieu of, any other remedies that a Party may have by virtue of a breach or default with respect to this Agreement. Furthermore, the termination of this Agreement shall not relieve either Party of any obligations due at or before the time of such termination or expiration or prejudice a Party’s claims regarding such obligations. Upon termination or expiration of this Agreement, all licenses granted in connection with a Party’s respective Branding Elements will immediately terminate and each Party will promptly remove the other Party’s Branding Elements from its marketing materials, websites, sales collateral and properties.
9. GENERAL
a. Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without reference to or application of choice of law rules or principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State courts in Santa Clara County, California and the Federal courts for the Northern District of California. Company and BILL hereby agree to service of process in accordance with the rules of such courts. Notwithstanding any choice of law provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods shall not apply.
b. Entire Agreement; Modifications. This Agreement constitutes the entire agreement between the Parties with respect to the matters set forth in this Agreement. This Agreement supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained herein, even if signed and returned. Except as expressly provided herein, this Agreement may be amended, or any term or condition set forth herein waived, only by a writing executed by both Parties.
c. Severability. Should any term of this Agreement be declared invalid, void or unenforceable by any court of competent jurisdiction or by an arbitration panel (as applicable), that provision shall be modified, limited or eliminated to the minimum extent necessary to effectuate the original intent and such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect.
d. Waiver. The failure of either Party to enforce any rights granted hereunder or to take action against the other Party in the event of any breach hereunder shall not be deemed a waiver by that Party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
e. Assignment. This Agreement may not be assigned or transferred by either Party, in whole or in part, without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may, without the prior written consent of the other Party, assign or transfer this Agreement to a subsidiary or affiliate as part of a divestiture, corporate reorganization or consolidation, or to another person in connection with a merger, sale of a majority of the assigning Party’s assets or equity or voting control, or a transfer by operation of law. Any action or conduct in violation of the foregoing shall be void and without effect. Subject to the foregoing, all rights and obligations of the Parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.
f. Legal Fees. The Party prevailing in any dispute under this Agreement shall be entitled to its reasonable costs and legal fees.
g. Notice. All notices or other information to be given by one of the Parties to the other shall be deemed sufficiently given when sent by: (i) certified mail (receipt requested), (ii) by courier, or (iii) by notification provided through the
BILL Partner Account or by electronic mail to a Company or BILL contact. Notices by certified mail or by courier or hand delivery shall be deemed to have been effective on the first business day following the day of such delivery. Notices through the BILL Partner Account or by electronic mail shall be deemed to have been effective on the day of delivery.
h. Equitable Relief. The Parties agree that a material breach of this Agreement adversely affecting BILL’s or its suppliers’ intellectual property rights in the BILL Standard Offering or the Confidential Information of either Party may cause irreparable injury to such Party for which monetary damages would not be an adequate remedy and the non-breaching Party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.
i. Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform to the extent due to causes beyond the control of such Party, including, but not limited to, acts of God, acts of the public enemy, acts of any governmental authority in its sovereign capacity, fires, floods, hurricanes, earthquakes, epidemics, quarantine restrictions, strikes or other labor disputes and freight embargoes. Should such delay or failure to perform continue for more than ninety (90) days, the Party not experiencing the force majeure event will have the right to terminate this Agreement with no penalty.
j. Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
k. Counterparts. This Agreement may be executed and delivered in one or more counterparts (including facsimile, PDF or other electronic counterparts), with the same effect as if the Parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts shall be construed together and shall constitute one Agreement.
l. Independent Contractors. This Agreement will not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the Parties. The Parties will, at all times, be and remain independent contractors.
m. Third Party Beneficiaries. This Agreement is entered into solely between, and may be enforced only by, Company and BILL, and the Agreement shall not be deemed to create any rights in third parties, or to create any obligations of a Party to any such third parties.
n. Survival. All provisions of this Agreement that give rise to continuing obligations of the Parties shall survive its expiration or termination. The Parties specifically agree that sections 4, 5, 6, 8, and 9 shall survive any termination or expiration of this Agreement.
1. BILL Responsibilities: Enrollment Link. BILL will develop and host a webpage where Company Referral(s) will be presented with the offer to register with BILL as a prospective customer of the BILL Standard Offering (“Affiliate Referral Registration Webpage”) and become a Referral Client. The Affiliate Referral Registration Webpage will be the landing page accessed by prospective customers through a unique referral link (provided by BILL to Company) that is displayed by Company through its website, emails, and other related promotional content. In order for a Company Referral to become a Referral Client, such referred customer must complete the registration steps required as part of the Affiliate Referral Registration Webpage and BILL must accept such completed submission to become a Referral Client in writing.
2. Company Responsibilities
a. Placement on Company Website & Online Customer Account. Company will prominently display promotional content about the BILL Standard Offering on Company’s website where it promotes and markets third-party services for customers suitable for the BILL Standard Offering (“Product Placement”)
b. Placement on Company Marketing and Sales Collateral. Company will prominently include promotional content about the BILL Standard Offering in Company’s marketing and sales collaterals for customers suitable for the BILL Standard Offering.
1. Submission of Leads. Company will share BILL-provided unique referral link within Company website(s), in customer emails or within related marketing materials which, if clicked on, will direct the referred party to the Affiliate Referral Registration Webpage where such Company Referral can enroll/register to become a subscriber of the BILL Standard Offering. Upon completion of all the registration/enrollment steps required on the Affiliate Referral Registration Page, a Company Referral only becomes a Referral Client once BILL has accepted such Company Referral as a subscriber of the BILL Standard Offering.
2. Qualified Leads. In order for a Company Referral lead to qualify as a Referral Client: (i) at the time of referral, BILL is not in any contractual relations or ongoing negotiations with such Company Referral; (ii) such Company Referral has not been previously referred by a third party to BILL; or (iii) the initial referral from Company through the unique referral link to BILL was not older than eighteen (18) months from the date such Company Referral completed their enrollment in the BILL Standard Offering to become a BILL Trial User or BILL Standard Customer. For the avoidance of doubt, a Company Referral will not qualify as a Referral Client (even if such Company Referral completes enrollment through the Referral Registration Webpage) if: (a) such Company Referral becomes a paid subscriber of the BILL Standard Offering through a separate sales or marketing channel, which includes, but is not limited to the BILL accounting firm/wealth management console sales channel or other separate BILL partnership or customer programs; or (b) the Company Referral becomes a paid subscriber of the BILL Standard Offering, and its BILL account is managed or operated by Company through its Console or is otherwise linked to Company’s Console (and such proposed lead is classified as a Client) in connection with Company’s use of the Console Service (to the extent Company is also a customer of the BILL Standard Offering). As used herein, “Console”, “Client” and “Console Service” shall have the same meaning as set forth in the BILL Terms of Service.
3. Pursuit of Leads by BILL. The method of contacting and following up with leads will be conducted at BILL’s discretion.
1. Referral Fee(s). During the active term of the Agreement, with respect to any Company Referral that becomes a BILL Trial User or a BILL Standard Customer, as applicable, Company will be entitled to receive Referral Fee(s) as follows:
a. For each Company Referral that becomes a BILL Standard Customer, Company will be entitled to a one-time payment of two hundred fifty Dollars ($250.00).
2. Reporting. Except as set forth in this agreement, BILL shall make Referral Fee payments earned within an applicable month within thirty (30) calendar days after the end of such month. BILL will provide a report to the Company specifying the number of: (i) Company Referrals that become BILL Trial Users or BILL Standard Customers for the calendar month and (ii) the Referral Fee(s) accrued to Company for the calendar month. BILL retains the right to adjust previous reporting provided to Company, submitted in subsequent payment periods, to account for any returns, chargebacks, or losses that settle subsequent to BILL’s report and payment for a specific monthly period.
SPEND & EXPENSE REFERRAL AGREEMENT
This Referral Agreement (this “Agreement”) is entered into and made effective as of the latest date set forth on the signature page to this Agreement (the “Effective Date”), by and between Cross River Bank, a New Jersey State Chartered Bank having its principal place of business at 2115 Linwood Avenue, Ft. Lee, New Jersey 07024-5020 (“Issuing Bank”), DivvyPay, LLC., a Delaware limited liability company maintaining offices at 13707 S. 200 W Draper, UT 84020 (“Divvy” or “BILL”) and Company (defined below) (“Company”).
WHEREAS, Company and BILL believe that from time to time Company may become aware of certain sales opportunities for the Divvy Solution; and
WHEREAS, Company and BILL desire to enter into this Agreement to establish the terms and conditions of their relationship.
NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. DEFINITIONS.
a. “Agreement” has the meaning set forth in the preamble.
b. “Applicable Law” means, with respect to any person, any law (including common law), ordinance, statute, treaty, rule, order, regulation, official directive, consent, approval, opinion, interpretation, regulatory guidance, authorization or other determination or finding of any Governmental Body, applicable to or binding upon such person or to which such person is subject, whether federal, state, county, local, foreign or otherwise, as may be amended and in effect from time to time, including the Bank Secrecy Act, the prohibition against unfair and deceptive acts and practices in the Federal Trade Commission Act, state data security laws, and the USA PATRIOT Act.
c. “Approve(d)” means a Referral which has (i) provided a Divvy Customer Agreement and (ii) received the final credit approval necessary to use the Divvy Solution.
d. “Customer” means an entity, firm, corporation, or enterprise identified by Company as a potential user of the Divvy Solution to whom Company markets, or has marketed, the Divvy Solution for and on behalf of BILL.
e. “Divvy Customer Agreement” means a written and executed (i) account application (including all required completed forms and supporting documentation necessary for a credit decision to be made) between a Customer and Issuing Bank through which BILL makes the Divvy Solution available to Customer, or (ii) any other business card agreement through which BILL makes the Divvy Solution available.
f. “Divvy Solution” means the cloud-based BILL spend and expense management software solution.
g. “Issuing Bank” means Cross River Bank, a FDIC-insured, New Jersey chartered commercial bank headquartered at 2115 Linwood Avenue, Ft. Lee, New Jersey 07024-5020. Issuing Bank is specifically identified as a third-party beneficiary of the Agreement.
h. “Network” means MasterCard, VISA, Cirrus, Plus or any other card network system of transmitting items and settlement thereof.
i. “Network Rules” means, with respect to a Network, the rules and obligations governing the use of the Network by third parties, and the NACHA rules, as such may be amended or restated from time to time.
j. “Referral” means each Customer referred by Company to BILL through registration of each such Customer by Company in BILL’s sales referral tracking database (the “BILL Referral Database”) located at the partner referral hyperlink (the “URL”), and accepted by BILL in writing as provided in this Agreement
(“Lead Referral Registration”). The URL may be updated by BILL by providing Company with written notice from time to time.
k. “Referral Fee(s)” means the amount to be paid to Company for each applicable Approved Referral as further described in Exhibit A (Referral Fee Structure), which is attached hereto and incorporated herein by reference.
l. “Territory” means the United States of America
2. REFERRAL PROVISIONS.
a. Non-Exclusive Referral Source. Company acknowledges that it is a non-exclusive sales referral source for the Territory for the promotion of the Divvy Solution to Customers, and the solicitation and referral of Customers to BILL for the Divvy Solution.
b. Registration of Customers. Company shall not otherwise introduce any Customer to BILL unless Company has first completed a Lead Referral Registration with respect to such Customer and BILL has accepted the Customer identified in that Lead Referral Registration. A Lead Referral Registration shall have a term of six (6) months after the date of registration (“LRR Term”). After expiration of each applicable LRR Term, each such Lead Referral Registration shall no longer be eligible to become an Approved Referral. So long as the BILL Referral Database is available and functioning, if Company introduces a Customer to BILL in any other format other than by completing a Lead Referral Registration in the BILL Referral Database (“Disqualified Referral”), BILL shall have no obligation to pay Company a Referral Fee for any Disqualified Referrals that are Approved.
c. Availability of BILL Referral Database. In the event that BILL has not fully activated, deactivates, disables, or the BILL Referral Database or URL is otherwise unavailable, Company may provide the applicable information regarding a Customer to BILL by email at partner-marketing@hq.bill.com. Any registration of Customers made by email in these circumstances shall be considered a Lead Referral Registration, and Customers so registered shall be considered a Qualified Referral for purposes of this Agreement.
d. Scope. Each Lead Referral Registration applies to any Divvy Customer Agreement that the Customer specified in the Lead Referral Registration enters into, and shall apply to any Approved Qualified Referral of the Divvy Solution that commences during the LRR Term.
e. Changes.
i. BILL may, in its sole and absolute discretion, discontinue the availability of the Divvy Solution or make any changes to the Divvy Solution.
ii. BILL and/or Issuing Bank are under no obligation to accept a Divvy Customer Agreement with any Referral, to Approve a Referral, and may, in its sole and absolute discretion, discontinue any and all services to an Approved Referral at any time.
iii. Upon 10 (ten) days prior written notice, BILL may, in its sole and absolute discretion, revise and amend the form, substance and structure of the Referral Fees.
f. Compensation.
i. Referral Fee: Subject to the terms of this Agreement, BILL shall pay Company a Referral Fee under the terms of the Referral Fee.
ii. Referral Fees earned by Company under Exhibit A (Referral Fee Structure) will be calculated on a monthly basis, and will be paid to Company within thirty (30) days after each fiscal year quarter that includes such monthly periods, with the relevant quarters ending on: March 31, June 30, September 30 and December 32 of each fiscal year (“Quarterly Period”).
iii. Unless otherwise agreed to by the parties in writing, Company shall not be entitled to any reimbursement of any expenses or for any other payment or compensation of any type other than as set forth in Exhibit A.
iv. If Company believes that the amount of any Referral Fees paid was incorrect, or that BILL has not paid Referral Fees, then Company must provide written notice to BILL of any such error within sixty (60) days of the end of the Quarterly Period related to such disputed Referral Fees. BILL shall have no further obligation in connection with any Referral Fees if it has not received written notice of an error within this sixty day period of time.
3. COMPANY’S OBLIGATIONS.
a. Name Use. In all Company promotional efforts, Company will use the then-current names used by BILL for the Divvy Solution (but will not represent or imply that Company is Issuing Bank or BILL, or is a part of, affiliated with, or acting as agent for Issuing Bank or BILL).
b. Other Agreements. Company does not have the authority to, and shall not enter into any agreement, contract or arrangement with any Customer or any other person, firm, corporation, entity or enterprise imposing any legal obligation on BILL, Issuing Bank, or any other financial institution through which BILL makes the Divvy Solution available.
c. Sales and Marketing.
i. Company shall use best efforts to market and promote the Divvy Solution to Customers and Referrals.
ii. Company shall only use marketing and promotional materials after receiving prior written approval of any such materials from BILL.
iii. If BILL makes any marketing or promotional materials available to Company, then Company shall not modify those materials without the prior written approval of BILL.
iv. Company shall not use any marketing or promotional materials approved by BILL for any purpose other than fulfilling the terms of this Agreement.
4. OWNERSHIP OF BILL INTELLECTUAL PROPERTY. Company agrees that BILL owns all rights, title and interest in and to BILL’s patents, trademarks, service marks, trade names, trade secrets, logos, and any other intellectual property or identifiers created or used by BILL (collectively, the “BILL Marks”). Company shall not, at any time during the term of this Agreement, dispute or contest, directly or indirectly, BILL’s right and title to the BILL Marks or the validity thereof or assist any third party to do so. Company shall not apply for or register the BILL Marks or any confusingly similar trademarks or service marks during the term of this Agreement. Company acknowledges it shall not acquire any rights in the BILL Marks hereunder. All goodwill arising from the use of the BILL Marks by Company shall inure to the benefit of BILL and BILL shall own all trademark and service mark rights, if any, in the BILL Marks created by any such uses.
5. OWNERSHIP OF ISSUING BANK INTELLECTUAL PROPERTY. Company agrees that Issuing Bank owns all rights, title and interest in and to Issuing Bank’s patents, trademarks, service marks, trade names, trade secrets, logos, and any other intellectual property or identifiers created or used by Issuing Bank (collectively, the “Issuing Bank Marks”). Company shall not, at any time during the term of this Agreement, dispute or contest, directly or indirectly, Issuing Bank’s right and title to the Issuing Bank Marks or the validity thereof or assist any third party to do so. Company shall not apply for or register the Issuing Bank Marks or any confusingly similar trademarks or service marks during the term of this Agreement. Company acknowledges it shall not acquire any rights in the Issuing Bank Marks hereunder. All goodwill arising from the use of the Issuing Bank Marks by Company shall inure to the benefit of Issuing Bank and Issuing Bank shall own all trademark and service mark rights, if any, in the Issuing Bank Marks created by any such uses.
6. APPOINTMENT OF SUBCONTRACTORS. Upon receipt of prior written authorization from BILL for each subcontractor (which BILL may withhold in its sole discretion), Company may authorize subcontractors (each a “Subcontractor”) to promote the Divvy Solution and solicit and refer Customers to Company for the Divvy Solution, pursuant to the terms and conditions of this Agreement and a separate agreement executed by and between Company and each Subcontractor (each, a “Subcontractor Agreement”). BILL shall have no obligations, monetary or otherwise, to pay any Referral Fees or renumeration of any kind to any Subcontractors appointed by Company. Upon receipt of prior written authorization for each subcontractor, Company shall register all Subcontractors with BILL prior to such Subcontractor acting to promote the Divvy Solution and solicit and refer Customers to Company for the Divvy Solution. Company shall register Customers referred by Subcontractors in the BILL Referral Database, and each such Lead Referral Registration completed by Company and accepted by BILL pursuant to this Agreement will be considered a Qualified Referral of Company for purposes of calculating the Referral Fee payments to be made by BILL to Company pursuant to this Agreement. Company shall pay to each Subcontractor any and all applicable fees for such Qualified Referrals pursuant to the terms and conditions set forth in the applicable Subcontractor Agreement. All Subcontractor activities performed on behalf of Company shall be considered the actions of Company directly for purposes of this Agreement, and Company shall be responsible to BILL for all actions of Subcontractors as if such actions had been performed directly by Company. Notwithstanding the foregoing, under no circumstances shall Subcontractor be barred from entering into a referral relationship with BILL, either by the terms of a Subcontractor Agreement, or otherwise.
7. CONFIDENTIAL INFORMATION.
a. Definition of Confidential Information. For the purposes of this Agreement, “Confidential Information” means non-public information about the disclosing party’s business or activities that is proprietary and confidential, which shall include, without limitation, all business, financial, technical and other information of a party marked or designated “confidential” or by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential. Confidential Information includes not only written or other tangible information, but also information transferred orally, visually, electronically or by any other means. Confidential Information includes, but is not limited to, (i) all information of or about current BILL customers, potential BILL Customers (unless such information is obviously in the public domain), and this Agreement and its accompanying Exhibits (Company may, however, disclose to potential customers that Company has a referral fees arrangement with BILL) and (ii) any proprietary and confidential information of third parties, such as Issuing Bank, that is in BILL’s possession and that is provided to Company. Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation or (iii) the receiving party knew prior to receiving such information from the disclosing party or develops independently, as shown in the written records of receiving party.
b. Obligations. Each party agrees (i) that it will not disclose to any third party or use any Confidential Information disclosed to it except as expressly permitted in this Agreement and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.
c. Exceptions. Notwithstanding the foregoing, each party may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law or (ii) on a “need-to-know” basis under an obligation of confidentiality to its legal counsel, accountants, independent contractors, financial institutions and other financing sources and their advisors. Except as set forth in this Section, the terms and conditions of the Agreement will be deemed to be Confidential Information and shall not be disclosed without the prior written consent of the other party.
d. Injunctive Relief. If the receiving party violates any of the provisions of the this Confidential Information Section, the disclosing party (in addition to any other and additional rights or remedies it may have at law, in equity, or by statute) shall be entitled to immediate and permanent injunctive relief, it being agreed that the damages that the disclosing party would sustain upon such violation are difficult or impossible to ascertain in advance. The posting of a bond shall not be required as a pre-condition to such injunctive relief.
8. OWNERSHIP. BILL shall retain all rights, title and interest in and to the Divvy Solution, and all copyrights, patent rights, trade secret rights, and all other current and future intellectual property and proprietary rights related thereto. Issuing Bank shall retain all rights, title and interest in and to Issuing Bank Marks.
9. DISCLAIMER OF WARRANTY. NEITHER BILL NOR ISSUING BANK OR ANY OTHER FINANCIAL INSTITUTION THROUGH WHICH BILL MAKES THE DIVVY SOLUTION AVAILABLE, MAKES ANY WARRANTY TO COMPANY THAT THE PRODUCTS AND SERVICES WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. BILL DISCLAIMS ANY WARRANTY WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING ANY IMPLIED WARRANTY OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
10. INDEMNIFICATION.
a. Company Indemnification. Company shall indemnify and hold BILL, Issuing Bank, or any other financial institution through which BILL makes the Divvy Solution available, and their affiliates, officers, directors, employees and subcontractors (the “BILL Indemnified Parties”) harmless from and against any and all third party claims, suits, actions, demands and proceedings (each, a “BILL Third-Party Claim”) against any BILL Indemnified Party and all losses, costs and liabilities related thereto arising out of or related to any warranties or representations made by Company or Subcontractors to a Customer, Referral or Approved Referral in connection with the Divvy Solution. In no event shall Company settle any BILL Third-Party Claim without BILL’s prior written approval. BILL may, at its own expense, engage separate counsel to advise BILL regarding a BILL Third-Party Claim and to participate in the defense of such claim, subject to Company’s right to control the defense and settlement.
b. BILL Indemnification. BILL shall indemnify and hold Company, and their affiliates, officers, directors, employees and subcontractors (the “Company Indemnified Parties”) harmless from and against any and all third party claims, suits, actions, demands and proceedings (each, a “Company Third-Party Claim”) against any Company Indemnified Party and all losses, costs and liabilities related thereto arising out of or related to any warranties or representations made by BILL to a Customer, Referral or Approved Referral in connection with the Divvy Solution. In no event shall BILL settle any Company Third-Party Claim without Company prior written approval. Company may, at its own expense, engage separate counsel to advise Company regarding a Company Third-Party Claim and to participate in the defense of such claim, subject to BILL’s right to control the defense and settlement.
11. LIMITATION OF LIABILITY.
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR (I) A PARTY’S OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION) (II) A PARTY’S OBLIGATIONS UNDER SECTION 7 (CONFIDENTIAL INFORMATION), (III) BILL’S OBLIGATIONS TO PAY TO COMPANY THE REFERRAL FEES PURSUANT TO THIS AGREEMENT, OR (IV) BILL’S BREACH OF ITS OBLIGATIONS SET FORTH IN SECTION 2 (AVAILABILITY OF BILL REFERRAL DATABASE), EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID BY BILL TO COMPANY UNDER THIS AGREEMENT DURING THE ONE YEAR PERIOD PRIOR TO THE DATE THE CLAIM AROSE, LESS IN ALL CIRCUMSTANCES ANY AMOUNTS PREVIOUSLY PAID IN SATISFACTION OF LIABILITY UNDER THIS AGREEMENT.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR (I) COMPANY’S OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION) (II) A PARTY’S OBLIGATIONS UNDER SECTION 7 (CONFIDENTIAL INFORMATION), OR (II) BILL’S BREACH OF ITS OBLIGATIONS SET FORTH IN SECTION 2 (AVAILABILITY OF BILL REFERRAL DATABASE), IN NO EVENT WILL EITHER PARTY BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS AND SERVICES WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
12. TERM; TERMINATION.
a. Term. Except as otherwise provided in this Agreement, this Agreement will commence on the Effective Date and shall remain in effect for a period of one (1) year (the “Initial Term”). This Agreement will automatically renew for consecutive annual periods unless terminated by either party by providing at least thirty (30) days prior written notice before the end of the then effective term (each a “Renewal Period”) (the Initial Period, together with any such annual Renewal Periods, the “Term”).
b. Termination for Cause. Either party may terminate this Agreement at any time by providing written notice to the other party if the other party commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) days after receipt of such notice from the other party, or such other period as the parties may agree upon in writing (“Termination for Cause”).
c. Termination for Convenience. Either party may terminate this Agreement for any reason, at any time, with termination effective five (5) days, or as more immediately required by law, after delivery to the other party of written notice of termination (“Termination for Convenience”).
d. Effects of Termination. Upon termination of this Agreement for any reason (i) Company will cease all activities related to referring Customers and Referrals to BILL and the Divvy Solution, (ii) each party shall cease using the other party’s Confidential Information, and upon request, return or destroy all tangible copies
of the other party’s Confidential Information in its possession and (iii) BILL shall have no obligation to pay any Referral Fees after the effective date of any such termination.
e. Survival of Obligations. Upon any expiration or termination of this Agreement for any reason, each party will be released from all obligations to the other arising after the date of expiration or termination, except as otherwise provided in this Agreement. The rights and obligations of the parties contained in this Section and Sections 1 (Definitions), Sections 4 and 5 (Ownership of Intellectual Property), 7 (Confidential Information), 8 (Ownership), 9 (Disclaimer of Warranty), 10 (Indemnification), 11 (Limitation of Liability), 12.4 (Effects for Termination), and 14 (General) will survive the expiration or termination of this Agreement.
13. REPRESENTATIONS, WARRANTIES, AND COVENANTS.
a. Each Referral will be for business or commercial purposes only, and not for personal, family or household purposes.
b. The individual signing this Agreement has the authority to enter into this Agreement on behalf of Company.
c. Company shall (i) comply, and shall cause its agents, representatives, employees, vendors, and service providers to comply, with Applicable Law and, if applicable, the Network Rules in its performance of this Agreement, (ii) not take any action or fail to take any action in its performance of this Agreement that it knows or reasonably should know will cause another party to violate Applicable Law or the Network Rules, and (iii) shall maintain commercially reasonable policies and procedures to govern its compliance with Applicable Law in its performance of this Agreement. Company shall comply with any reasonable direction as to compliance with Applicable Law related to the marketing of credit products, and shall perform its obligations consistent with any reasonable direction as to any compliance standards.
d. To the best of Company’s knowledge, all statements in any materials given in connection with a Customer, Referral, and in the Agreement are true and correct and are not materially misleading in any respect.
e. Company and BILL are each respectively a validly organized, licensed, registered and existing entity in good standing in its state of registration and is duly qualified to transact business in all jurisdictions in which it is transacting business and both Parties will comply with all applicable laws and regulations.
f. Both Parties have and shall maintain all necessary licenses required to perform their obligations under this Agreement and shall refrain from any actions that require any license that it does not hold.
g. All information provided to BILL by Company is information that Company may lawfully share with BILL, and the sharing of such information with BILL and use of such information by BILL is permissible under any applicable privacy policy and any other contractual terms between the Company and the subject(s) of the information.
h. During the Term of this Agreement, both Parties shall maintain insurance with terms, coverage, and limits customary for a prudent insured that is (i) engaged in a similar industry within the state(s) in which it operates, and/or (ii) conducting activities or providing services similar to those of that party under this Agreement.
i. During the term of this Agreement, both Parties shall maintain a disaster recovery and business continuity plan.
14. GENERAL.
a. Severability. In the event any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.
b. Assignment; Waiver. Company may not sell, assign, sublicense, convey, encumber or transfer this Agreement or any of Company’s rights or obligations under this Agreement without the prior written consent of BILL, which consent may not be unreasonably withheld. Any attempted assignment or transfer without such written consent shall be null and void. BILL may sell, sublicense, assign, transfer, convey or encumber its rights and obligations under this Agreement without the prior written consent of Company.
c. Waivers and Remedies. No delay or omission to exercise any right, power or remedy accruing to either party, upon any breach or default of the other party under this Agreement, shall impair any such right, power or remedy, nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereafter occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Any waiver, permit, consent, or approval of any kind or character on the part of either party of any breach or default by the other party under this Agreement, or any waiver of any provisions or conditions of this Agreement must be made in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, by law or otherwise afforded to either party, shall be cumulative and not alternative.
d. Attorney’s Fees. If either party elects to pursue legal action to enforce its rights under this Agreement, by arbitration or otherwise, then the prevailing party in such action shall be entitled to receive from the losing party all costs and expenses, including but not limited to the reasonable fees of attorneys, accountants, and other experts, incurred by the prevailing party in investigating and prosecuting (or defending) such action in such arbitration or at the initial trial and appellate levels.
e. Injunctive Relief. Each party acknowledges that certain breaches of this Agreement may cause irreparable harm for which money damages would be an inadequate remedy. Accordingly, upon certain breaches or threatened breaches of this Agreement, the breaching party hereby acknowledges that the non-breaching party shall be entitled to seek injunctive or other equitable relief, in addition to any other remedies to which it may be entitled, including money damages.
f. Relationship of Parties. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.
g. Rights and Obligations of Third Parties. Except with respect to Issuing Bank and any other financial institution through which BILL makes the Divvy Solution available, each of which is an intended third party beneficiary of any provision herein referring to such party, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties and their respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge the obligation of any third parties to any party, nor shall any provision give any third party any right of subrogation or action against any party.
h. Notices. Any notice, request, consent or other communication required or permitted by this Agreement shall be in writing addressed to Company or to an authorized BILL representative and shall be delivered as follows, with notice deemed given as indicated: (a) by personal delivery, when actually delivered; (b) by overnight courier, upon written verification of receipt; (c) by facsimile transmission, upon acknowledgment of receipt of electronic transmission; (d) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day; or (e) by certified or registered mail, return receipt requested, upon verification of receipt.
Notices to each party shall be sent to the address set forth below, or other address as a party may provide in writing:
Notices to BILL:
DivvyPay, LLC
Attention: General Counsel
13707 S. 200 W., Suite 100
Draper, UT 84020
Email: legal@hq.bill.com
Notices to Issuing Bank:
Cross River Bank
Arlen Gelbard
2115 Linwood Avenue
Ft. Lee, New Jersey 07024-5020
i. Governing Law. This Agreement shall be construed in accordance with the laws of the State of New York , excluding its conflict of law rules.
j. Arbitration. All disputes arising out of or relating to the subject matter of this Agreement (“Disputes”), other than actions by BILL to enforce its intellectual property rights with respect to the Divvy Solution, shall be arbitrated in accordance with the Commercial Arbitration Rules of the American Arbitration Association (hereinafter the “AAA”) in New York City, NY. Judgment on the arbitration award in accordance with this Agreement may be entered in any state or federal court of competent jurisdiction. One arbitrator shall be selected according to said rules within thirty (30) days of submission of a Dispute to the AAA. The arbitrator shall have the power to enter any award that could be entered by a judge of the Superior Court of the State of Utah sitting without a jury, and only such power, except that the arbitrator shall not have the power to award damages which this Agreement prohibits one party from collecting from the other party, even if permitted under the laws of the State of New York or any other applicable law. The arbitrator must issue its resolution of any dispute within thirty (30) days of the date the dispute is submitted for arbitration.
k. Entire Agreement; Modification. This Agreement, including any Exhibits hereto and any Lead Referral Registrations completed by Company, is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes all other prior and contemporaneous negotiations and agreements, oral or written, including without limitation the Prior Agreement, between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing, signed by the parties.
l. Headings. The headings of the Sections of this Agreement are inserted for convenience of reference only and shall not affect the construction or interpretation of any provisions hereof.
m. Electronic Documents. Electronic records and signatures may be used in connection with the execution of this Agreement and related documents, in BILL’s discretion. This Agreement and related documents may be executed and delivered electronically, which agreement shall become effective when executed by Company and the approved by BILL, which approval shall be provided in BILL’s sole and absolute discretion.
1. Referral Fee Structure. During the Term, Company will be entitled to receive the following Referral Fees, as calculated and set forth below:
a. Definitions. The following terms apply to this Exhibit A.
i. “Line of Credit” means the total amount of credit made available by Issuing Bank to an Approved Referral, which Line of Credit shall be extended in Issuing Bank sole and absolute discretion.
ii. “Referral Fee(s)” means the amount payable by Divvy to Company for each (i) Approved Referral equal to the One-time Payment associated with such Approved Referral’s Line of Credit outlined in the below table during the Term of this Agreement which submit a Divvy Customer Agreement to Divvy. The Referral Fee for each Approved Referral shall be a one-time payment.
- Except as set forth in this Agreement, Divvy shall make Referral Fee payments earned within an applicable month within thirty (30) calendar days after the end of such month.
- Divvy’s obligation to pay any Referral Fees to Company earned prior to the date of termination, but which are unpaid, shall be paid within thirty (30) days after the date of termination. Divvy shall have no obligation to pay any Unearned Referral Fee.
- For clarity, unless otherwise agreed upon in writing, both parties acknowledge and agree that under no circumstances under this Agreement is Divvy required to pay any Referral Fees to Company for any fees or revenue generated by an Approved Referral’s access to, and use of, the bill payment and payment processing, invoicing and other cash flow management software that Bill.com, LLC makes generally available at www.bill.com as such is updated from time to time.