Last Modified: January 11, 2020
This is a contract between you (the "Hive Member") and us ("Rake LLC"). This Agreement defines how we will work together and applies exclusively to your participation in our Hive Partner Referral Program (the "Affiliate Program").
An entity that is authorized to refer business (Approved Referral Accounts) to Rake and receive commissions.
A Rake client who was referred by a Hive Member.
These terms may be updated periodically at our discretion. We might also choose to replace these terms in their entirety if, for example, the Affiliate Program changes or ends. If we update or replace the terms we will let you know via electronic means, which may include an in-app notification or by email. If you don't agree to the update or replacement, you can choose to terminate as we describe below.
This Agreement does not create an exclusive agreement between you and us. Both parties have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
Once you complete a request to become a Hive Member, we will review your request and notify you whether you have been accepted to participate in the Affiliate Program. We may require additional information or require you to complete a formal application at our discretion. We reserve the right to accept or deny applications for any reason and are not obligated to disclose the basis for any such acceptance or rejection to you or any other third party. If we do not notify you that you are accepted to participate in the Affiliate Program within fourteen (14) days of your request to become a Hive Member, your request is considered to be rejected. Rake technical integration and strategic partners with existing referral programs are not eligible for Hive Membership.
Upon you request to participate in the Hive Affiliate Program, the terms and conditions of this Agreement shall apply in full force and effect until terminated, pursuant to the terms set forth below. Further, you will need to complete any enrollment criteria as requested by us, within thirty (30) days of your acceptance. At a minimum, you will be required to provide a completed W-9 form for our accounting records. Failure to complete any enrollment criteria within thirty (30) days of your acceptance may result in termination of this Agreement and you will no longer be able to participate in the Hive Affiliate Program.
You will comply with the terms and conditions of this Agreement at all times.
Hive Member "Commissionable Revenue" will be determined on a monthly basis and is defined as the total amount of revenue for services collected each month from Approved Referral Accounts. In no event, however, shall Commissionable Revenue include: (i) taxes; (ii) regulatory surcharges, fees and assessments; (iii) credits; and (iv) unbillable or uncollectible charges. You shall be entitled to twenty (20) percent of the Commissionable Revenue.
To qualify as an Approved Referral Account, a business entity must
(i) signup for Services through the "REFER A BUSINESS" form on the rake.ai website,
or (ii) if the business entity signs up for services via the other means, notify us via email to email@example.com, that you referred them during the signup process.
If a customer signs up for Services without notifying Rake of the referral (e.g., if the customer signs up directly at https://rake.ai), the customer and/or you have up to ninety (90) days to correct the error to qualify as an Approved Referral Account for commission purposes.
A Hive Member choosing to become an active customer of Rake cannot also qualify to be its own Approved Referral Account.
We retain the right to determine whether a Hive Member is an Approved Referral Account in the event of a dispute.
Rake will only be liable for payment of commissions on full, non-delinquent payments from Approved Referral Accounts. Rake reserves the right to withhold commissions or chargeback commissions on revenue from customers deemed uncollectible by Rake. You will receive notice in the event of such a withholding or chargeback. If you are also a customer of Rake, commissions can also be withheld if your account is in a past-due status. Commissions may be used to offset any balance owed to Rake until all such outstanding balances are cleared.
On or around the 15th of each month, Rake will provide you with monthly remittance reports, via the Rake platform, containing itemized information with respect to your Approved Referral Accounts, including the revenue attributable to such accounts and a calculation of the commission payment due hereunder for the reported month (the previous month's amount collected). You shall have a period of sixty (60) days after receipt of monthly reports and payments to challenge or dispute the accuracy of the accounting. If you do not challenge or dispute the accounting within such time period, the payment will be considered final and accepted without recourse or later dispute.
Commissions will be paid on a monthly basis when they reach a minimum of $25.00.
This Agreement will apply for as long as you participate in the Affiliate Program, until terminated.
If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice to us, provided that you send us written notice within ten (10) days after we send you notice of the change.
We may terminate this Agreement for cause:
(i) upon thirty (30) days' notice to you of a material breach if such breach remains uncured at the expiration of such period,
(ii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period,
(iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors,
(iv) immediately, if you breach the terms applicable to your Services with us (if you have Services with us), including if you default on your payment obligations, or
(v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
If this Agreement is terminated for any reason, you will immediately be deemed an Inactive Affiliate and we will no longer permit any new customers from signing up through your affiliate account. Termination of this Agreement (i) without cause by us, or (ii) by you in response to changes to this Agreement, as outlined herein, shall not affect our obligation to pay you commissions if due. If this Agreement is terminated (i) without cause by you, or (ii) with cause by us, our obligation to pay you and your right to receive any commissions will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive commissions prior to the date of termination. Except as expressly set forth herein, you are not eligible to receive a commission payment after the expiration or termination of this Agreement.
Upon expiration or termination of this Agreement, you will discontinue use of any signup links, promotional codes, marketing materials or other information we have made available to you in consideration for your participation in the Affiliate Program.
Upon expiration or termination of this Agreement, you will immediately discontinue all use of our trademark and references to this Affiliate Program from your website(s) and other collateral. For the avoidance of doubt, the termination or expiration of this Agreement shall not cause a customer's subscription to be terminated.
As used herein, "Confidential Information" means all confidential information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), (i) whether orally or in writing, that is designated as confidential, and (ii) Rake customer and prospect information, whether or not otherwise designated as confidential.
Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party using the same degree of care that it uses with its own confidential information, but in no event less than reasonable care, (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents.
The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
You acknowledge and agree that the relationship arising from this Agreement does not constitute a general agency, joint venture, partnership, employee relationship or franchise between us and that you are an independent contractor with respect to the services you perform pursuant to this Agreement. All expenses incurred by you in connection with your efforts to market the Services offered hereunder will be entirely your responsibility. Rake will not in any way be responsible or liable for such expenses. You will be responsible for payment of all taxes or other fees due as a result of Rake's payment of commissions to you.
This Agreement shall in no way limit our right to sell our Services, directly or indirectly, to any current or prospective customers, including prospective customers via the internet.
You grant to us a nonexclusive, non transferable, royalty-free right to use and display your trademarks, service marks and logos ("Affiliate Marks") in connection with the Affiliate Program and this Agreement.
During the term of this Agreement, in the event that we make our trademark available to you, you may use our trademark as long as you follow the usage requirements in this section.
(i) only use the images of our trademark that we make available to you, without altering them in any way;
(ii) only use our trademarks in connection with the Affiliate Program and this Agreement; and
(iii) immediately comply if we request that you discontinue use.
You must not:
(i) use our trademark in a misleading or disparaging way;
(ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or
(iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.
In the event of any defect, failure, modification or discontinuation of the Services or the provision thereof, neither Rake nor its Providers shall be liable to your or any end user for any actual, direct, indirect, special, incidental, consequential, punitive or any other damages, or for any lost revenue, profits or commissions of any kind, whether or not foreseeable, which are claimed to have arisen therefrom. In no event shall either party be liable to the other party for any special, indirect, consequential or punitive damages, whether or not foreseeable, which are claimed to have arisen from any act or omission of either party in connection with its performance under this Agreement.
You agree to indemnify, defend and hold harmless Rake, its Providers and their respective officers, directors, employees and affiliates, from and against any loss, claim, action, suit, proceeding, judgment, damage, liability, cost, and expense (including without limitation court costs, legal expenses, reasonable attorney's fees and allocable cost of in-house counsel) which arise from or are claimed to have arisen from, directly or indirectly, breach of this Agreement or any act or omission of you, your employees, officers, affiliates, representatives, third parties authorized by you, sub agents or contractors in performing activities related to this Agreement, and you shall receive and respond to all inquiries related thereto.
Rake reserves the right to assign this Agreement to others without your consent. You may not assign this Agreement to any other without the express written consent of Rake, which will not be unreasonably withheld.
Notices to be given pursuant to this Agreement must be in writing, although electronic means (including email and in-app notifications) are acceptable.
If to Rake, notice shall be provided to:
19740 Governors Highway, Suite 115
Flossmoor, IL, 60422
Notices to you shall be given to the address and/or email address you provided during your application or via an update at a later time. You are responsible for notifying Rake of any changes to your contact information and Rake shall not be liable for notices delivered to an invalid/old location.
No failure by either party to take action on account of any default by the other will constitute a waiver of any such default or of the performance required of the other.
Any dispute arising out of or related to this Agreement which cannot be resolved by the parties shall be exclusively submitted for binding arbitration in Chicago, Illinois in accordance with the Commercial Arbitration Rules of the American Arbitration Association, unless the parties mutually agree otherwise. Notwithstanding the foregoing, should Rake's Provider(s) also become a party to the dispute, then you agree that Rake may allow Rake's Provider(s) to dictate the location and arbitrator of the dispute and you agree to submit to the jurisdiction of the forum chosen by Rake's Provider(s).
If any legal action is brought by either party against the other in connection with a dispute arising under this Agreement, the party in whose favor final judgment is entered shall be entitled to recover from the other party all reasonable attorney's fees and costs of suit incurred in connection with the action in addition to any other relief that may be allowed pursuant to this Agreement or by law.
This Agreement will be governed by and construed in accordance with the domestic laws of the state of Illinois. This Agreement is the entire Agreement between us for the Affiliate Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in a purchase order, acceptance, website or correspondence.
If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.