Referral Program Agreement

Last Updated April 18, 2018

By signing up for the Partner Program, you are agreeing to be bound by the following Partner Program Agreement (the “Agreement”). The Agreement is between you, as Partner (as defined below in Section A.1.), and TPS Unlimited, Inc. (d/b/a TaxJar), a Delaware corporation (“Company”), with its principal place of business at 8677 Villa La Jolla Dr. #1107, La Jolla, CA 92037(“TaxJar”) (together, the “Parties”, and each a “Party”). You can review the current version of the Agreement at any time at taxjar.com/partners/terms. TaxJar reserves the right to update and change the Agreement by posting updates and changes here: taxjar.com/partners/terms. If a significant change is made, we will provide reasonable notice by email and/or posting a notice in the Partner Portal. You are advised to check the Agreement from time to time for any updates or changes that may impact you. Any reference to the Agreement includes any and all terms and documents incorporated by reference.

You must read, agree with and accept all of the terms and conditions contained in this Agreement and TaxJar’s Privacy Policy before you may become a Partner and, for the avoidance of doubt TaxJar’s Privacy Policy form part of this Agreement and are incorporated by reference. Some types of TaxJar Partner Program activities may require that you agree to additional terms (“Additional Terms”). Such Additional Terms are incorporated into this Agreement by reference. In the event of a conflict or inconsistency between this Agreement and the Additional Terms, the Additional Terms will govern, to the extent of such conflict or inconsistency.

By checking the “Agree to Terms of Service” checkbox and clicking on the “Get Started” button, You are confirming that You have read this Agreement and are agreeing to be bound by, and are becoming a party to, this Agreement. Selecting “Get Started” will be the legal equivalent of Your signature on a written contract, and equally binding.

WHEREAS, Company and the Partner desire to enter into a referral agreement on the terms and conditions set forth herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

  1. APPOINTMENT. Company hereby appoints the Partner and the Partner hereby agrees to become Company’s non-exclusive representative for the marketing of Company’s SmartCalcs and AutoFile products (“Company Services”), and Company grants the Partner the non-exclusive right to market the Company Services during the term of this Agreement, subject to all of the terms and conditions of this Agreement. Partner's sole authority will be to market the Products to, and solicit orders for the Products from, Leads in the Territory in accordance with the terms of this Agreement. Partner will have no power or authority, expressed or implied, to make any commitment or incur any obligations on behalf of the Company. Partner will represent Company and the Company Services in a fair, accurate, and ethical manner.
  2. REVENUE SHARING. Company agrees to pay Partner a Referral Fee in accordance with Exhibit A (the “Referral Commissions”) in exchange for performing a Revenue Generating Activity. “Revenue Generating Activity” means an activity carried out by Partner, as determined by Company, including the following:
    1. Activities undertaken by Partner in marketing the Company Services to Leads where, at a minimum, Partner establishes contact with the Lead, provides information regarding the Company Services to the Lead, and facilitates the relationship between Company and the Lead. Marketing Activities shall also include any other marketing activities that have been mutually agreed to by the Parties in writing to target particular Lead(s) or to establish the relationship between Partner and Company with the market at large, and/or
    2. introduction of a Referred Lead to Company via Partner’s Affiliate Link or Lead Registration Form found in the Partner Portal.
    “Referral Fee” shall mean the amounts collected by Company for Company Services purchased by customers that first sign up for the Company Service [through a website provided by Company to Partner] [using their authentication credentials for the Partner’s services] [choose one]. Notwithstanding anything to the contrary in Partner’s agreement with such customer, Partner consents to customer sharing its authentication credentials with Company for purposes of powering this authentication with Partner service and sign-up for the Company Services. “Net Revenue” shall mean the sum of all amounts actually received by Company with respect to the Services, less (a) amounts collected for sales taxes, duties, credit card fees and similar charges; (b) amounts collected for related support; (c) refunds; and (d) amounts due to credit card fraud, bad debts, cancellations and credits for returned goods, rebates, and special promotional funds.
  3. PAYMENT. Referral Fees due to Partner will be calculated by Company once per month upon receipt of payment from the Customer, for each month that the Referred Customer is active. In order to continue receiving the Referral Fee for the Customers referred under the Referral Program Agreement, Partner must carry out at least one Revenue Generating Activity, as set forth in Section 2, in each consecutive 12-month period. Company will pay Partner the Referral Fee set forth above within thirty (30) days after the end of the month in which the corresponding amounts are collected by Company.
  4. TERRITORY LIMITATION. Partner shall neither advertise the Products outside the Territory, as defined in Exhibit A, nor solicit Leads from outside the Territory without the prior written consent of Company. Partner shall promptly submit to Company, for Company's attention and handling, the originals of all inquiries received by Partner from Leads outside the Territory.
  5. NO AGENCY. The Partner shall be an independent contractor of Company. The Partner’s representatives, agents and employees shall not represent themselves or act as employees of Company and shall not have the right or authority in any way to bind Company to any obligation to any third party, and they shall not assume or create in writing or otherwise evidence any obligation of any kind, express or implied, in the name of or on behalf of Company, unless specifically authorized to do so in writing by Company and in accordance with the conditions specified by Company. The Partner covenants that it shall be at all times an independent contractor, and that it shall do business at its own risk and for its own profit.
  6. TERM AND TERMINATION.
    1. Term. Unless terminated earlier in accordance with this Agreement, the term of this Agreement shall commence on the date hereof and shall initially extend until one (1) year from the date hereof (the “Initial Term”). Thereafter, unless terminated earlier in accordance with this Agreement, the term of this Agreement shall be automatically extended for successive renewal terms of one (1) year at a time (the “Renewal Term,” and with the Initial Term, the “Term”), provided that either party may terminate this Agreement as of the end of any such term by written notice to the other party given not later than fifteen (15) days prior to the end of the relevant year.
    2. Termination.
      1. Termination Without Cause. Notwithstanding anything to the contrary in this Agreement, either party may terminate this Agreement immediately at any time upon written notice
      2. Termination With Cause. A party may terminate this Agreement by written notice to the other party in the event that such party fails to observe or perform any term or condition of this Agreement and does not cure such failure within thirty (30) days after written demand by the party giving notice.
      3. Termination By Mutual Consent. The parties hereto may terminate this Agreement in whole or in part at any time by mutual consent.
    3. Rights and Obligations Upon Termination. Upon any termination of this Agreement, all terms and conditions of this Agreement shall cease except for (i) any obligations of Company set forth in Sections 2 and 3 hereof, (ii) this Section 6, (iii) the last two sentences of Section 7, and (iv) Sections 8 through 11 hereof.
  7. PUBLICITY; USE OF NAME AND TRADEMARKS. [The Partner and Company may jointly choose to issue a joint press release disclosing the nature of the partnership between the parties, which press release shall be reviewed and approved by each of the parties prior to any such public issuance or disclosure, such approval not to be unreasonably withheld or delayed.] [Thereafter,] Neither party will issue any press releases nor make any public statements regarding this Agreement or the relationship between the parties without the prior written consent of the other party; provided, Partner shall be permitted to make statements to Qualified Prospects concerning the relationship of the parties and provide Company marketing materials to Qualified Prospects. Partner shall make no representation, guarantee or warranty concerning the Services except as expressly authorized in advance by Company in writing. Subject to the terms of this Agreement, Company grants Partner the right to use and display the Company trademarks, service marks, tradenames designations of source and logos as specifically designated in a writing delivered by Company which references this Agreement and/or as used by Company in its advertising and marketing materials, on its website or otherwise as they may appear with respect to the Services (“Marks”) solely for the purposes set forth in this Agreement. All such use of the Marks shall be in accordance with Company’s trademark usage and quality control guidelines provided from time to time. Partner acknowledges that the Marks are the exclusive property of Company. Partner will not use, register or take other action with respect to any Mark anywhere in the world, except to the extent authorized in advance writing by Company. The Partner shall not (i) use Company’s name in either its own corporate name or any fictitious business name or (ii) use any trademarks, service marks, trade names or logos that are confusingly similar to Company’s trademarks, service marks, trade names or logos. Partner will cease or modify any use of the Marks upon Company’s request. All goodwill in the Marks will inure for the sole benefit of Company.
  8. PROPRIETARY RIGHTS AND CONFIDENTIALITY. As used herein, “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by Company that Company has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to Partner; provided, however, that Company’s business plans, marketing plans, strategies, technologies (including, without limitation, all proprietary technology related to the Company Services), research and development, current and prospective customers, billing records, products or services, the terms of any Customer Agreement and the terms of this Agreement shall be deemed Confidential Information even if not so marked or identified. The Partner shall keep confidential, shall not disclose, sell or transfer or otherwise use in any manner other than as necessary to exercise its rights and/or perform its obligations under this Agreement, and shall protect from unauthorized use, disclosure, sale or transfer by its employees and agents, the Confidential Information and all copies or physical embodiments thereof in its possession, and shall limit access to the Confidential Information to those of its personnel who require such access in connection with the Partner’s use thereof as permitted by this Agreement. The Partner shall secure and use reasonable measures to protect the confidentiality and value of the Confidential Information and any and all copies and other physical embodiments thereof in its possession in a manner consistent with the maintenance of Company’s rights and interest therein. The Partner shall take appropriate action by instruction or agreement with its employees who are permitted access to the Confidential Information or any copy or other physical embodiment thereof to satisfy the Partner’s obligations hereunder. Upon termination of this Agreement for any reason, the Partner shall immediately return to Company or, if authorized by Company, destroy all documents, files, and other materials embodying any of the Confidential Information and shall certify to Company that such return or destruction has taken place. Promptly upon discovery that any person has acquired possession, use or knowledge of any part of the Confidential Information other than as authorized by this Agreement, the Partner shall notify Company of such fact and the surrounding circumstances. Company agrees that the foregoing shall not apply with respect to any information that the Partner can document (a) is or becomes generally available to the public without breach of this Agreement, or (b) was in its possession or known by it prior to receipt from Company, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information or (e) is required to be disclosed by law.
  9. REPRESENTATIONS; WARRANTY DISCLAIMER. Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties. EXCEPT FOR THE EXPRESS REPRESENTATIONS MADE IN THIS SECTION 9, EACH PARTY MAKES NO AND EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT.
  10. LIMITATIONS ON LIABILITY. EXCEPT FOR LIABILITY ARISING FROM A BREACH OF SECTION 7 OR 8, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR (A) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF PROFITS OR BUSINESS), WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) ANY OTHER DAMAGES IN EXCESS OF THE REFERRAL FEES PAID AND/OR DUE FROM COMPANY TO PARTNER. THIS SECTION 10 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
  11. GENERAL.
    1. Dispute Resolution. Any disputes, disagreements or controversies between the parties that arise out of or relate to this Agreement or the subject matter hereof shall be resolved solely and exclusively by binding arbitration before the American Arbitration Association in San Diego, California. In connection with said arbitration, the parties agree that the arbitrator shall not have power to award damages in excess of actual compensatory damages and shall not multiply actual damages or award consequential or punitive damages, and each party hereby irrevocably waives any claim to such damages.
    2. Governing Law; Attorneys’ Fees. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each party submits to the exclusive jurisdiction of the state and federal courts located in San Diego, California and waives any jurisdictional, venue, or inconvenient forum objections to such courts. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
    3. Entire Agreement. Both parties agree that this Agreement, including all exhibits and addenda hereto, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto, the terms of such exhibit, addendum or shall prevail.
    4. Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
    5. No Waiver. The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any right hereunder.
    6. Assignment. Neither party may assign this Agreement or assign or delegate its rights or obligations under the Agreement without the other party’s prior written consent; provided however, that either party may assign this Agreement to an acquirer of or successor to all or substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise. Any assignment or attempted assignment by either party otherwise than in accordance with this Section 11.6 shall be null and void.
    7. Force Majeure. Each party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either party may terminate this Agreement by giving written notice thereof to the other party. Upon the occurrence of any Force Majeure Event, the affected party shall give the other party written notice thereof as soon as reasonably practicable of its failure of performance, describing the cause and effect of such failure, and the anticipated duration of its inability to perform.
    8. Notices. All notices under this Agreement will be in writing and sent to the recipient’s address set forth below such party’s signature hereto and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
    9. Headings. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement.

EXHIBIT A

COMPANY SERVICES; TERRITORY; COMMISSIONS
  1. Company Services: All products and services of Company, including, but not limited to SmartCalcs, Reporting and AutoFile.
  2. Territory: No territory restrictions
  3. Commission Rate: Revenue Share Referral Fee on all monthly fees on Company Services for first three (3) closed referrals - 15%
    Revenue Share Referral Fee on all monthly fees on Company Services for any subsequent closed referrals - 20%
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