StockMarketEye Referral Agreement
Effective Date: March 24, 2023
This Referral Agreement (“Agreement”) has been adopted by StockMarketEye, LLC (“StockMarketEye”), a California limited liability company, to inform you, either the referrer (“Referrer,” as more thoroughly defined below) or the referral (“Referral,” as more thoroughly defined below”) of your rights and duties when participating in the StockMarketEye Referral Program (“Referral Program”). Your participation in the Referral Program constitutes your manifestation of assent to and intent to be bound by the terms and conditions of this Agreement.
YOU UNDERSTAND AND AGREE THAT YOU HAVE A DUTY TO READ THIS AGREEMENT.
By participating in the Referral Program, you manifest your assent and agree to be bound by this Agreement. If you do not agree to the terms and conditions contained within this Agreement, you must discontinue your participation in the Referral Program immediately. StockMarketEye reserves the right to suspend, replace, modify, amend, or terminate this Agreement at any time and within its sole and absolute discretion. In the event StockMarketEye replaces, modifies, or amends this Agreement, the Effective Date, located at the top of this Agreement, will change. Your continued participation in the Referral Program after a change in the Effective Date above will constitute your manifestation of assent to, and agreement with, any replacement, modification, or amendment herein.
THIS REFERRAL AGREEMENT CONTAINS AN ARBITRATION PROVISION AND A CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS. YOU HAVE A DUTY TO READ THIS AGREEMENT AND THE ARBITRATION PROVISION AND CLASS ACTION WAIVER CONTAINED WITHIN. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, ITS ARBITRATION PROVISION, OR ITS CLASS ACTION WAIVER, YOU MUST IMMEDIATELY DISCONTINUE YOUR PARTICIPATION IN THE REFERRAL PROGRAM.
“Advertising Materials” is defined as pay per click advertisements, display advertisements, landing pages, web pages, newsletters, email blasts, hypertext links, or other content used to advertise the availability of StockMarketEye’s services.
“Coupon Code” means a unique code provided by StockMarketEye to Referrer so that Referrer may provide the code to a Lead to confirm that the Lead was referred to StockMarketEye by Referrer.
“Lead” is defined as an individual or business entity that contacts StockMarketEye through efforts that are directly attributable to Referrer.
“Referrer” is defined as any individual or business entity that has agreed to this Agreement and is authorized to participate in the Referral Program and refer Leads to StockMarketEye under the terms of this Agreement.
“Referral” is defined as a qualified Lead approved by StockMarketEye that has used a Coupon Code to purchase services from StockMarketEye.
“Referral Discount” is defined as a discount in the price of StockMarketEye’s services that is provided to a Referral.
“Referral Fee” is defined as the amount paid by StockMarketEye to Referrer for a Referral, which will be listed on the StockMarketEye website and may be changed at any time within StockMarketEye’s sole and absolute discretion.
“User” is defined as a potential lead, including, but not limited to, users of third-party websites.
2. Warranties, representations, and eligibility. Each Referrer and Referral warrants and agrees that he or she has the right and legal capacity to enter into this agreement, that each Referrer or Referral is a human individual age eighteen (18) or above, and that each Referrer or Referral is not prohibited from entering into this Agreement by any preexisting agreement with a third party. If Referrer or Referral is participating in this Referral Program on behalf of a third party, each Referrer or Referral warrants that each Referrer or Referral is an actual and authorized agent of that third party and has the authority and capacity to bind that third party to the terms and conditions of this Agreement. If each Referrer is a current client of StockMarketEye, Referrer understands and agrees that, in order to participate in this Referral Program, Referrer must maintain a good credit standing with StockMarketEye and Referrer’s account must not be in arrears. Each Referrer or Referral agrees to provide StockMarketEye with accurate, current, and complete contact information and to update that contact information if and when it changes.
3. Participation in Referral Program. StockMarketEye will pay Referrer a Referral Fee for all Referrals. The Referral Fee paid by StockMarketEye will be posted to the StockMarketEye Referral Program web page and may be amended, modified, replaced, or suspended from time to time. StockMarketEye reserves the right to amend, modify, replace, or suspend the Referral Fee paid to Referrer at any time and within its sole and absolute discretion. StockMarketEye will approve Leads within its sole and absolute discretion and consistent with its established policies for accepting or rejecting clients. By participating in the Referral Program, Referrer warrants and agrees that it will not circumvent, tamper with, modify, or compromise the technological tracking and protection measures implemented by StockMarketEye in furtherance of the Referral Program, including, but not limited to, the unauthorized modification of the number of Referrals calculated by StockMarketEye. Referrer’s failure to strictly comply with the terms and conditions of this Agreement may result in the termination of this Agreement and the forfeiture of any Referral Fees owed to Referrer pursuant to this Agreement.
4. Approval of Advertising Materials. Referrer may advertise the services of StockMarketEye in compliance with the terms of this Agreement. Referrer is expressly prohibited from advertising the services of StockMarketEye in association with:
- Websites or other services that collect personal or personally identifiable information from a User without his or her express consent; Websites or other services that contain or display obscene, sexually explicit, illegal, pornographic, racist, offensive, or derogatory content;
- Websites or other services that promote bodily harm to or harassment of third parties;Websites or other services that violate the rights of third parties, including intellectual property or other personal or proprietary rights;Websites or other services that violate any applicable law, statute, treaty, regulation, or ordinance, whether local, state, provincial, national, or international; and
- Websites or other services that contain any other objectionable content to be defined within StockMarketEye’s sole and absolute discretion.
Referrer may use Advertising Materials to truthfully and accurately advertise the availability of StockMarketEye’s services consistent with the terms of this Agreement. Referrer agrees to comply with all applicable advertising laws, regulations, ordinances, statutes, or treaties, whether local, state, provincial, national, or international, including, but not limited to, the CAN SPAM Act, Part 255 of the FTC false advertising regulations, and state false advertising law. StockMarketEye reserves the right to terminate this Agreement and cancel Referrer’s participation in the Referral Program for Referrer’s failure to comply with this paragraph.
5. Payments. StockMarketEye will calculate the number of Referrals generated by Referrer and pay Referrer for all Referrals on a monthly basis. Within thirty-one (31) days of its receipt of a Referral, StockMarketEye will calculate the number of Referrals generated by Referrer and provide Referrer with a report disclosing the Referral Fee amount to be paid to Referrer. StockMarketEye will then remit payment to Referrer at the address or payment method provided by Referrer and stored within the records of StockMarketEye. In the event the Referral Fee to be paid to Referrer in any thirty-one (31) day period is less than $50, StockMarketEye may hold the Referral Fee to be paid to Referrer until the next period in which the Referral Fee to be paid to Referrer equals or exceeds $50. Referrer understands and agrees that he or she has an ongoing duty to update its contact information if and when it changes and, in the event any Referral Fee is returned to StockMarketEye due to an incorrect address, StockMarketEye will not resend or reissue the returned Referral Fee to Referrer.
6. Referral Discounts. StockMarketEye may provide a Referral Discount to a Lead to incentivize a Lead to sign up for StockMarketEye’s services and become a Referral. To take advantage of a Referral Discount, a Lead must enter the Coupon Code provided to it by a Referrer when signing up for StockMarketEye’s services and sign up for StockMarketEye’s service. The Referral Discount provided by StockMarketEye to a Lead will be posted to the StockMarketEye Referral Program web page or the unique sign-up link and page provided to a Referrer and may be amended, modified, replaced, or suspended from time to time. StockMarketEye reserves the right to amend, modify, replace, or suspend the Referral Discount at any time and within its sole and absolute discretion.
7. Trademarks and Copyrighted Works. Referrer and Referral acknowledge and agrees that any and all trademarks, trade names, design marks, or logos displayed on the StockMarketEye website or marketing materials, including but not limited to the STOCKMARKETEYE mark, are common law or registered trademarks owned by or licensed to StockMarketEye. Referrer and Referral are expressly prohibited from using the trademarks of StockMarketEye to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of Referrer or Referral’s goods or services. Referrer and Referral are further prohibited from using the trademarks of StockMarketEye in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. Referrer may make a nominative fair use of the trademarks of StockMarketEye consistent with trademark law and Section 4 of this Agreement while participating in the Referral Program. Referrer and Referral are also prohibited from using the copyrighted content of StockMarketEye, including, but not limited to, StockMarketEye’s logos, copy, and website content.
8. Term and Termination. Each party may terminate this Agreement at any time and without cause. Either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured such breach within five (5) calendar days of written notice from the non-breaching party that specifies the breach. StockMarketEye may terminated this Agreement if, at any time, Referrer or Referral (i) breaches any term or condition of this Agreement; (ii) becomes insolvent or files an assignment for the benefit of creditors; (iii) is the subject of an insolvency proceeding, including, but not limited to, an involuntary bankruptcy; (iv) violates the rights of third parties, including, but not limited to, intellectual or other personal or proprietary rights; or (iv) voluntarily files a petition for bankruptcy. Termination of this Agreement hereunder will not limit a party from pursuing any other remedies available to it, including injunctive relief. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement will survive termination or expiration hereof and will continue in full force and effect.
9. Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE REFERRAL PROGRAM, ITS USE, AND REFERRER OR REFERRAL’S RESULTS OF SUCH USE ARE PROVIDED ON AN “AS IS” BASIS. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, STOCKMARKETEYE MAKES NO WARRANTIES (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR THE ABSENCE OF LATENT OR OTHER DEFECTS), GUARANTEES, REPRESENTATIONS, PROMISES, STATEMENTS, ESTIMATES, CONDITIONS, OR OTHER INDUCEMENTS, EXPRESS, IMPLIED, ORAL, WRITTEN, OR OTHERWISE, EXCEPT AS EXPRESSLY SET FORTH HEREIN. NEITHER PARTY IS RESPONSIBLE FOR DELAYS CAUSED BY ACCIDENT, WAR, ACTS OF GOD, EMBARGO, COMPUTER SYSTEM FAILURE OR ANY OTHER CIRCUMSTANCE BEYOND ITS CONTROL. STOCKMARKETEYE WILL MAKE EVERY REASONABLE EFFORT TO MEET SCHEDULED OR ESTIMATED DELIVERY DATES BUT MAKES NO GUARANTEE AND ACCEPTS NO LIABLITY FOR ITS FAILURE TO MEET SAID DATES. NEITHER PARTY SHALL BE LIABLE FOR ANY PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, COSTS OR EXPENSES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, BUSINESS INTERRUPTION, LOSS OF OPERATION TIME AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, LOSS, COST OR EXPENSE. OTHER THAN AS SET FORTH HEREIN, EACH PARTY’S TOTAL OBLIGATIONS AND/OR LIABILITY, IF ANY HEREUNDER, SHALL BE LIMITED TO THE AMOUNTS STOCKMARKETEYE HAS PAID TO REFERRER.
10. Indemnification. Referrer and Referral assume full and complete responsibility and liability for their participation in the Referral Program and will indemnify and hold StockMarketEye, its directors, officers, employees, and agents harmless from and against all demands, claims, or liability arising out of or relating to Referrer’s Advertising Materials or Referrer or Referral’s participation in the Referral Program. Referrer warrants that its Advertising Materials will be truthful, accurate, and will comply with all local, state, federal, and international laws concerning the advertisement and sale of goods or services. Referrer and Referral understands and agrees that they will indemnify, defend, and hold harmless StockMarketEye, its officers, directors, employees, affiliates, independent contractors, and agents, for any and all damages, losses, claims, actions, costs, judgments, liabilities, and expenses, including attorneys’ fees and costs, arising out of or related to any: (i) in the case of Referrer, claim by any third party that any of Referrer’s Advertising Materials infringe a third party’s copyright, trademark, patent, trade secret, or other intellectual property rights; (ii) in the case of Referrer, claim by any third party that any of Referrer’s Advertising Materials violate the rights of a third party, are defamatory or obscene, or violate any ordinance, law, regulation, or other judicial or administrative action; or (iii) breach by Referrer or Referral of any representation or warranty set forth in this Agreement. A third party means any entity other than the parties to this Agreement and their respective directors, officers, employees, and agents. If any action is or will be brought against StockMarketEye with respect to any allegation for which indemnity may be sought, Referrer or Referral, whichever is applicable, will provide reasonable cooperation to StockMarketEye, at Referrer or Referral’s expense, to defend against or settle any such claim. Referrer or Referral’s obligation to defend StockMarketEye under the terms of this Agreement will not provide Referrer or Referral with the ability to control StockMarketEye’s defense, and StockMarketEye reserves the right to control its defense and select its counsel.
11. Assignment. Referrer or Referral may not assign, in whole or in part, any rights, obligations, or duties created by or under this Agreement. StockMarketEye may assign its rights, obligations, or duties under this Agreement at any time upon written notice to Referrer or Referral, including in a sale or transfer of all or substantially all of StockMarketEye’s assets, in a sale or transfer of StockMarketEye’s accounts, or in a merger of StockMarketEye with another company. Should StockMarketEye assign its rights, obligations, or duties under this Agreement, StockMarketEye’s rights, obligations, or duties under this Agreement will be binding on, and shall inure to the benefit of, its successor or assign.
12. Survival. If any provision of this Agreement is held to be illegal, invalid, or unenforceable, and if the rights or obligations of either party under this Agreement will not be materially and adversely affected, (i) said provision will be fully severable; (ii) this Agreement will be construed and enforced as if said provision had never comprised a part of this Agreement; (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the severance of any provision; and (iv) there will be added a legal, valid, and enforceable provision as similar in terms to said provision as may be possible in lieu of said provision.
13. Choice of Laws. This Agreement will be governed by and interpreted in accordance with the laws of the State of California. Referral, Referrer, and StockMarketEye’s sole and exclusive forum and remedy at law for any disputes arising out of or related to this Agreement, including the interpretation thereof, shall be binding arbitration. Arbitration under this Agreement will be held in San Francisco, California and will be conducted by a single arbitrator, who shall be randomly selected from the American Arbitration Association National Roster of Arbitrators. The arbitrator shall decide any and all claims in accordance with the laws and legal principals of the State of California and the American Arbitration Association’s most recently effective commercial arbitration rules and shall have the authority to award costs and attorneys’ fees. The losing party will be required to pay the prevailing party’s attorneys’ fees. Referrer, Referral, and StockMarketEye agree that the determination or award of any such arbitrator or arbitration proceeding may be entered as a judgment in any court sitting within the State of California that has jurisdiction over the subject matter of the dispute. Referrer, Referral, and StockMarketEye understand and agree that the parties will be required to be present within the State of California in order to perform their obligations under the terms of this Agreement. Referrer, Referral, and StockMarketEye hereby submit to the exclusive personal and subject matter jurisdiction of any such arbitrator or arbitration proceeding.
14. Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement, must be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
15. Relationship of the Parties. Nothing in this Agreement will be deemed or construed as creating a joint venture, partnership, employment, or fiduciary relationship between the parties. Neither party has any authority of any kind to bind the other party. The relationship of the parties is, and at all times shall continue to be, that of independent contractors.
16. Force Majeure. Except for the payment of monies due hereunder, neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, Internet or other network “brownouts” or failures, power failures, and acts of civil and military authorities; provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance. To the extent that a force majeure has continued for ten (10) business days, Referrer, Referral, and StockMarketEye may terminate the Agreement, excluding payment obligations, without penalty.
17. Integration. This Agreement, including any exhibit(s), addendum (addenda) or rider(s) attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes (i) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter, and (ii) all past courses of dealing and industry custom. No amendment or modification of any provision of this Agreement, exhibit, addendum or rider shall be effective unless in writing and signed by a duly authorized representative of each party.