Referral Agent Program Terms & Conditions
Effective Date: 01.01.11
The Aptela Referral Agent Program (the "Referral Program") will provide business associates of Aptela ("Agents") with the opportunity to refer friends and other business acquaintances to Aptela and receive compensation for referrals which become Aptela customers.
1. Role of the Agent
1.1 Registration. Agent must register with Aptela through its online registration system and accept this Referral Program terms and conditions prior to submitting any referral opportunities to Aptela. The Agent must also provide Aptela with a signed W-9 form. The Agent will then be issued an identification number to be used in the future when submitting referral opportunities through the Aptela website.
1.2 Submitting Referrals Opportunities. The Agent is responsible for submitting all required information through Aptela's website or through the Aptela -provided referral agent web widget for each referral opportunity.
2. Compensation
2.1 Compensation. Aptela shall pay to Agent, as compensation for Agent's services under this Referral Program, a referral fee for each new Aptela customer sales order that results from each referral opportunity ("Referral Fee").
2.2 Criteria for Earning Referral Fee.
(a) The referral opportunity must be submitted through the Aptela website or the Aptela-provided web widget.
(b) The referral opportunity must be converted to a sales order by an Aptela Sales Representative within six (6) months of referral.
(c) The referral fee will be earned if the customer account is active and the customer has paid for two (2) consecutive months of Aptela service.
(d) The referral fee will be issued within ten (10) business days following the second billing cycle and full payment by the customer.
(d) The Agent and customer must be in good standing with Aptela at the time referral fee is issued.
2.3 Referral Fee. The Referral Fee is a one-time payment equal to one (1) times the Monthly Recurring Charges (MRC) per new referral account. The final Referral Fee will be calculated based upon the account's monthly recurring charges (MRC) at the time of the second billing cycle. MRC excludes taxes, regulatory fees and minute usage of any kind. Maximum referral compensation is $500 per customer account.
2.4 No Duplicate Referral Fees. Aptela is not liable for paying duplicate, overlapping or multiple Referral Fees. If more than one Agent or a 3rd party (including Aptela employees) claims credit for the same referral opportunity or the referral opportunity is already a documented Aptela lead, Aptela will in its sole discretion determine which party, if any, shall receive a Referral Fee for the referral opportunity.
2.5 Referral Fee Program Changes. Aptela reserves the right to make Referral Program changes at any time, including modifying the criteria for earning a Referral Fee and/or the method for calculating the Fee.
3. Limited Authority
3.1 Referral Acceptance. Aptela may, in its discretion, accept or decline for any reason in its sole discretion, any referral opportunity that is referred by Agent. Agent shall have no right to, and shall not: (a) accept any orders on behalf of Aptela, or commit or bind Aptela to any agreement, warranty, contract or undertaking; (b) pursue, waive or compromise any of Aptela's rights against customers or other parties; (c) accept payments or authorize any deductions, discounts or payment term extensions on behalf of Aptela; or (d) accept payments from parties other than Aptela as it relates to this Referral Program.
3.2 Appointment of Third Parties. Agent shall not appoint, directly or indirectly, any parties to assist Agent in performing its obligations or exercising its rights under this Referral Program without the prior written approval of Aptela.
3.3 Marketing. Aptela shall supply the Agent with the referral agent sales widget, sales literature and related marketing collateral ("Authorized Marketing Materials") for the Services and Products. The Agent shall use the Authorized Marketing Materials to promote the Services and Products according to this Referral Program. No advertising, marketing, promotion, public relations or other similar materials, methods or media in connection with the Services and Products may be used by Agent, other than the Authorized Marketing Materials, without the prior written approval of Aptela.
3.4 Independent Contractors. Aptela and Agent are independent contractors with respect to each other, and nothing contained in this Referral Program shall be deemed or construed to create, and the parties do not intend to create, a contract of employment or a joint venture, partnership, agency, fiduciary or other form of legal relationship between the parties. Agent is not the agent of Aptela and is not authorized and shall not have any authority to make any representation, contract or commitment on behalf of Aptela, or otherwise bind Aptela in any respect whatsoever. Agent (and its employees) shall not be entitled to any of the benefits that Aptela may make available to its employees, such as group insurance, profit-sharing or retirement benefits. Agent shall be solely responsible for all tax returns and payments required to be filed with or made to any federal, state or local tax authority with respect to Agent's performance of services and receipt of fees under this Referral Program. Aptela may regularly report amounts paid to Agent with the Internal Revenue Service as required by law. Because Agent is an independent contractor, Aptela shall not withhold or make payments for social security, make unemployment insurance or disability insurance contributions, or obtain worker's compensation insurance on Agent's behalf. Agent shall comply with, and agrees to accept exclusive liability for non-compliance with, all applicable state and federal laws, rules and regulations, including, without limitation, obligations such as payment of all taxes, social security, disability and other contributions based on fees paid to Agents or employees under this Referral Program. Agent hereby agrees to indemnify, hold harmless and defend Aptela against any and all such liability, taxes or contributions, including, without limitation, penalties and interest.
4. Termination
4.1 Termination for Convenience. Aptela may immediately terminate the Referral Program and/or the relationship it has with any Agent at any time for convenience ("Termination for Convenience").
4.2 Termination for Cause. Aptela may immediately terminate any Agent by providing written notice to the Agent for a breach of the Referral Program which is not cured within five (5) days after the Agent's receipt of notice of such breach from Aptela ("Termination for Cause").
4.3 Effect of Termination.
(a) Payments. If Termination for Convenience, then Agent shall receive within ninety (90) days all Referral Fees due as of the date of such termination. If Termination for Cause, then Agent will immediately forfeit any and all rights to receive any Referral Fee payments.
(b) Non-Interference. Upon termination of this Referral Program or any Agent, Agent shall not make any statements or take any actions that might harm or interfere with Aptela's relationship with any Aptela customers referred by Agent.
(c) Survival. Upon expiration or termination of this Referral Program, the rights and obligations of the parties under this Referral Program shall terminate, except that the rights and obligations of the parties under Sections 2, 3.4, 4.3 and through 10 of this Referral Program shall survive such expiration or termination.
5. Proprietary Rights
Agent acknowledges Aptela's exclusive right, title and interest in and to its patents, trade secrets, trademarks, trade names, service marks, copyrights and other intellectual property rights and shall not, at any time, contest or in any way impair any part of such right, title or interest. Nothing contained in this Referral Program shall be construed as conferring upon Agent (by implication, operation of law or otherwise) any license to any such right, title or interest. Agent shall not register or attempt to register any trademarks of Aptela, or any marks similar thereto, for any products or services in any jurisdiction.
6. Indemnity
Agent agrees to indemnify and hold Aptela and its affiliates, directors, officers, employees and Agents harmless from and against any and all losses, expenses (including reasonably attorney fees and costs) and damages of any kind incurred as a result of any breach of this Referral Program by Agent, Agents, attorneys, successors and/or assigns.
7. Warranty Disclaimer
APTELA DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ALL WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. APTELA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE SERVICES WILL PREVENT UNAUTHORIZED ACCESS BY THIRD PARTIES. APTELA NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE SERVICES, INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING OUT OF THE DELIVERY OR USE OF THE SERVICES.IN NO EVENT SHALL APTELA BE LIABLE TO AGENT OR ANY THIRD PARTY UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF APTELA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Liability
8.1 CONSEQUENTIAL DAMAGES WAIVER. IN NO EVENT SHALL APTELA BE LIABLE TO AGENT OR ANY THIRD PARTY UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, REVENUE, BUSINESS, SAVINGS, DATA OR USE INCURRED BY AGENT OR ANY THIRD PARTY, EVEN IF APTELA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 LIMITATION OF LIABILITY. IN NO EVENT SHALL APTELA BE LIABLE FOR ANY CLAIM OR DAMAGES CAUSED BY OR ARISING OUT OF : (i) ANY ACT OR OMISSION (INCLUDING WITHOUT LIMITATION UNAUTHORIZED USE, THEFT, ALTERATION, LOSS OR DESTRUCTION OF SERVICE OR THE APPLICATIONS, CONTENT, DATA, PROGRAMS, INFORMATION, NETWORK OR SYSTEMS OF AGENT, OR ANY THIRD PARTY, (ii) EXCEPT AS OTHERWISE PROVIDED IN THE REFERRAL PROGRAM, SERVICE LEVELS, DELAYS OR INTERRUPTIONS OR LOST OR ALTERED MESSAGES OR TRANSMISSIONS, (iii) INTEROPERABILITY, INTERACTION OR INTER-CONNECTION OF THE SERVICES WITH APPLICATIONS, EQUIPMENT, SERVICES, CONTENT OR NETWORKS PROVIDED BY AGENT, CUSTOMER OR THIRD PARTIES, (iv) ANY DAMAGES FOR DELAYS IN PROVISION OF THE SERVICES, OR (v) THE FACT THAT APTELA DOES NOT PROVIDE 911 EMERGENCY SERVICE IN THE SAME MANNER AS TRADITIONAL TELECOMMUNICATIONS CARRIERS. NOTWITHSTANDING ANY OTHER PROVISION OF THIS REFERRAL PROGRAM, AND TO THE FULLEST EXTENT ALLOWED UNDER APPLICABLE LAW, APTELA'S SHALL NOT BE LIABLE TO AGENT OR ANY THIRD PARTY FOR CLAIMS RELATING TO THIS REFERRAL PROGRAM, WHETHER FOR BREACH, NEGLIGENCE, INFRINGEMENT, IN TORT OR OTHERWISE.
9. Dispute Resolution
9.1 Governing Law. This Referral Program is to be construed in accordance with and governed by the internal laws of the Commonwealth of Virginia, without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the Commonwealth of Virginia to the rights and duties of the parties.
9.2 Arbitration.
(a) Any controversy or claim relating to this Referral Program (other than claims for injunctions and other equitable relief) shall be settled exclusively by arbitration in Washington D.C., in accordance with the then-prevailing Commercial Arbitration Rules of the American Arbitration Association. Judgment upon the award rendered by such arbitration shall be final and binding upon the parties and may be entered in any court having jurisdiction. The arbitration shall be conducted by one arbitrator. The arbitrator shall not have the power to alter, modify, amend, add to or subtract from any term or provision of the Referral Program, to rule upon or grant any extension, renewal or continuance of the Referral Program, or to award damages or other remedies expressly prohibited by the Referral Program, including, without limitation, punitive or exemplary damages.
(b) If, as a matter of law, the foregoing arbitration provision is not enforceable as to a particular claim brought by one party against the other, then that claim shall be instituted solely in a court situated in Fairfax County, Virginia. For this purpose, both Aptela and Agent hereby irrevocably consent to the personal jurisdiction of the courts located in the Fairfax County, Virginia and waive any defense based on improper venue, inconvenient venue or lack of personal jurisdiction.
9.3 Costs and Attorney Fees on Breach. If any action is brought by either party under this Referral Program by reason of any claim or cause of action against the other arising out of or in connection with any breach or other nonperformance of the provisions of this Referral Program, then any party that is successful upon any final determination of any such claim or cause of action shall be entitled to reasonable preparation, investigation and attorneys' fees and court costs, as are fixed by an arbitral panel or court of competent jurisdiction.
9.4 Post-Judgment Attorney Fees. In addition to the provisions of Section 9.3, the prevailing party shall be entitled to receive its reasonable attorney fees incurred in enforcing any judgment. Said attorney fees incurred in enforcing any judgment are recoverable as a separate item. The post-judgment attorney fees provision herein is intended to be severable from the other provisions of the Referral Program and to survive any judgment and is not to be deemed merged into the judgment.
10. Miscellaneous
10.1 Notices. Any notice, request, demand or other communication required or permitted hereunder shall be in writing, shall reference this Referral Program and shall be deemed to be properly given: (a) when sent by facsimile, with written confirmation of receipt by the sending facsimile machine; or (b) when sent by email; or (c) two (2) business days after deposit with a private industry express courier, with written confirmation of receipt. All notices to Aptela shall be sent to Aptela, Inc., Attention: Controller, 2250 Corporate Park Drive, Suite 150, Herndon, VA 20171 or by Fax to (571) 643-0661. All notices to Agent shall be sent to the according to the Agent's contact information submitted by the Agent at the time of registration.
10.2 Assignment. Agent shall not assign, delegate or otherwise transfer this Referral Program or any right or obligation hereunder (whether by express transfer, operation of law or otherwise) without the prior written consent of Aptela. Any attempted or purported assignment or other transfer not complying with the foregoing shall be null and void. Subject to the foregoing, this Referral Program shall inure to the benefit of and bind the successors and assigns of the parties.
10.3 Injunctive Relief. Agent acknowledges that the breach of any provision of Sections 3.1, 3.2, 3.3, or 5 shall cause irreparable injury to Aptela, and agrees that Aptela shall have the right to temporary, preliminary and permanent injunctive relief, without the necessity of proving actual damages or posting a bond, to prevent any such breach. In the event Aptela is required to file a lawsuit or court action against Agent to prevent such breach, Agent agrees to pay Aptela's reasonable attorney fees, expenses and court costs.
10.4 Entire Referral Program. This Referral Program contain the entire understanding of the parties with respect to the subject matter of this Referral Program and merges and supersedes all prior and contemporaneous Referral Programs and understandings between the parties, whether oral or written, with respect to the subject matter of this Referral Program. Aptela reserves the right to correct any clerical error in the Referral Program or in the calculation or payment of Commissions at any time.
10.5 Counterparts. This Referral Program may be executed in one or more counterparts, all of which together shall constitute a single Referral Program.
10.6 Headings. The various section headings are inserted for convenience of reference only and shall not affect the meaning or interpretation of this Referral Program or any section thereof.
10.7 Severability. If any term, provision, covenant or condition of this Referral Program is held by a court or arbitral panel of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
