THIS REFERRAL AGREEMENT (the “Agreement”) is effective as of the date of (the “Effective Date”),
BETWEEN: E Empire.com Inc., dba DistantJob, a corporation registered under the laws of the Province of Quebec, Canada, reg. no. 1162362306, with its principal place of business at: 1790 Beaulac, St-Laurent, Quebec, Canada H4R1W8, including its affiliated companies and approved agents (the “DistantJob”),
AND: a person who explicitly and directly accepted this Agreement online, and was approved by DistantJob (the “Referrer”).
DistantJob and the Referrer shall individually be referred to as “Party” and collectively as “Parties”.
WHEREAS, DistantJob is engaged in the business of providing holistic HR service globally and remotely (the “Services”); and
WHEREAS, the Referrer desires to refer potential clients (“Referrals”) of the Services to DistantJob in exchange for a commission on any revenue generated by DistantJob as a result of such Introductions (as defined in Section 1.1. hereinbelow).
NOW, THEREFORE, in consideration and as a condition of the Parties entering into this Agreement and other valuable considerations, the receipt and sufficiency of which consideration is acknowledged, the Parties agree as follows:
1.1. Throughout the term of this Agreement, the Referrer shall make reasonable efforts to endorse and promote DistantJob and its services; it may also refer and transmit potential customers (including, but not limited to, business acquaintances, customers and associates) for DistantJob’s Services (“Introductions”). The Referrer will respect and comply with all current practices and procedures regarding the referral of clients to the Services.
1.2. The Referrer may only claim compensation hereunder for customers with whom Referrer has had direct personal contact and to whom Referrer has directly approved and recommended the Services.
1.3. Throughout the term of this Agreement, the Referrer undertakes not to recommend potential customers to any person or entity that offers products and services that are in competition with those offered by DistantJob.
1.4. If applicable, throughout the term of this Agreement, the Referrer undertakes to display all promotional items and relevant documentation related to DistantJob’s Services.
1.5. The Referrer will use its professional judgment as to the appropriateness of a particular Introduction (recognizing that some Introductions may not be appropriate at a particular time or at any time).
1.6. DistantJob will meet or conference and negotiate independently with a Referral after an Introduction with respect to a potential relationship and the terms applicable to such potential relationship.
1.7. The Referrer may not object to any decisions made by DistantJob regarding the terms or conditions of a particular relationship entered into after an Introduction. Further, DistantJob will have sole discretion to enter into or not enter into an arrangement with a Referral.
2.1. During the Term (as defined in Section 3.1. hereinbelow), DistantJob will pay the Referrer a commission (the “Compensation”) generated because of Introductions by the Referrer in accordance with Exhibit A.
2.2. The Compensation shall be considered complete consideration for all Referrals made during the Term. The Referrer shall be responsible for any and all income and other taxes applicable to it in connection with its receipt of Compensation pursuant hereto and as an independent contractor of DistantJob.
2.3. DistantJob will not be responsible for any expenses of the Referrer in the course of the performance of its obligations hereunder unless such expenses have been previously approved in writing by DistantJob.
3.1. The Term (the “Initial Term”) of this Agreement shall commence on the Effective Date and shall continue for a period of 2 months. Prior to the end of the Initial Term and each “Renewal Term” (as hereafter defined), this Agreement will automatically extend for an additional 3 month period (each, a “Renewal Term”) unless either Party sends the other Party a notice of non-renewal at least 30 days prior to the expiration of the “Term” (as hereafter defined). The Initial Term and any Renewal Terms shall be collectively referred to herein as the “Term”. This Agreement may be terminated by DistantJob upon 15-day’s prior written notice.
5.1. No Employment Relationship. DistantJob and the Referrer each expressly agree and understand that they are creating an independent contractor relationship, and that the Referrer shall not be considered an employee of DistantJob for any purpose. The Referrer is not entitled to receive or participate in any medical, retirement, vacation, paid or unpaid leave, or other benefits provided by DistantJob to its employees. The Referrer is exclusively responsible for all taxes and any other statutory benefits otherwise required to be provided to employees, and all fees and licenses, if any, required for the performance of the Services hereunder.
5.2. No Exclusivity of Services Other Than to Competitors. This Agreement shall not restrict the Referrer from performing Services for other clients or businesses, provided, however, that during the Term of this Agreement, the Referrer shall not apply, bid, or contract for, or undertake any employment, independent contractor work or consulting work with any competitor of DistantJob. The determination of which businesses constitute “competitors” of DistantJob shall be solely within the exclusive discretion of DistantJob.
5.3. Performance of Services for Competitors. The Referrer will notify DistantJob immediately if, during the Term, he engages, or proposes to engage, in the performance of Services for any competitor of DistantJob, or any vendor to or customer of DistantJob. If the Referrer performs Services, whether as an employee or an independent contractor, for a competitor of DistantJob during the Term of this Agreement, DistantJob may terminate this Agreement immediately and without further obligation. Additionally, to avoid the appearance or existence of a conflict of interest, during the Term, the Referrer must fully disclose in advance to DistantJob the terms of any proposed or actual Services for a vendor or customer of DistantJob, and DistantJob shall have the right in its sole discretion to disapprove the transaction on conflict of interest grounds, or alternatively, to terminate this Agreement immediately and without further obligation to the Referrer.
6.1. Each of the Referrer and DistantJob represents and warrants that:
6.1.1. it has the right to enter into this Agreement and the right to grant the rights granted herein;
6.1.2. it is not a party to any agreement, contract, or understanding that would prevent, limit, or hinder its performance of this Agreement;
6.1.3. during the Term, it will not enter into any contract, agreement or understanding which is in conflict or which would interfere with the full and complete performance of any of the duties or grants hereunder; and
6.1.4. it is not a party to any pending claims or litigation which might affect its performance of this Agreement.
6.2. The Referrer shall provide the Services diligently and as per industry standards.
6.3. The Referrer shall not provide misleading information about DistantJob or its Services to any third party.
6.4. The Referrer shall for the Term of the Agreement work exclusively with DistantJob and not work with any other similar and competing company, whether paid or free, to provide the Services.
6.5. The Referrer shall conduct itself in a professional manner while performing the Services for DistantJob.
6.6. The Referrer hereby represents and warrants that, as of the date hereof and continuing throughout the Term of this Agreement, he is not and will not be in any way restricted or prohibited, contractually or otherwise, from entering into this Agreement or performing the Services contemplated hereunder.
6.7. Except as specifically set forth in this Agreement, to the maximum extent permitted by law, each Party disclaims all warranties and representations, whether express, implied, or statutory, with respect to the marketing Services provided to the other Party and other obligations undertaken hereunder, including without limitation, the implied warranties of merchantability, fitness for a particular purpose (even if the Referrer has been informed of such purpose), or warranties arising from a course of dealing, usage or trade practice. Further, DistantJob does not make any warranty that the quality of the Services purchased or obtained by a client after a Referral will meet such client’s expectations.
7.1. Notwithstanding other provisions of this Agreement, during the Term, the Referrer shall not: (i) directly or indirectly market, promote, or solicit clients or subscriptions for, supply, sell, or resell any product or service in competition with the Services; (ii) have any controlling interest in any entity that markets, promotes, sells or provides any product or service in competition with the Services; (iii) enter into any agreements with any provider to resell, redistribute, sub-license or otherwise commercialize any product or service that competes with the Services; or (iv) display on its website or elsewhere any advertising or marketing materials of any provider of any product or service that compete with the Services, unless separately authorized to do so by DistantjJob. DistantJob shall have the continuing right to market and sell the Services and any other products or services to any third parties, including but not limited to current, future, and potential clients (including Referrals).
7.2. The Referrer agrees to refrain from any solicitation or recruitment (directly or indirectly) of any of DistantJob’s employees during the Term of this Agreement and for a period after the expiration or termination of this Agreement equal in duration to the duration of this Agreement. General solicitation, not directed at DistantJob’s employees, will not constitute a violation of this section.
8.1. The language of the Agreement shall be the English Language, which shall be the binding and controlling language for all matters relating to the meaning or interpretation of the Agreement.
9.1. Confidential Information Defined. As used herein, the term “Confidential Information” shall mean and include, without limitation, any and all trade secrets, secret processes, marketing data, marketing plans, marketing strategies, customer names and addresses, prospective customer lists, data concerning DistantJob’s products and methods, computer software, files, and documents, and any other information of a similar nature disclosed to the Referrer or otherwise made known to him as a consequence of or through his relationship with DistantJob.
9.2. Confidential Information Belongs to DistantJob. All notes, data reference materials, memoranda, documentation, and records in any way incorporating or reflecting any of the Confidential Information shall belong exclusively to DistantJob, and the Referrer agrees to return the originals and all copies of such materials in his possession, custody or control to DistantJob upon request or upon termination or expiration of the Term of this Agreement.
9.3. Confidentiality Obligation. The Referrer agrees during the Term of this Agreement and thereafter to hold in confidence and not to reveal directly or indirectly, report, publish, disclose, or transfer any of the Confidential Information to any other person or entity, or utilize any of the Confidential Information for any purpose, except in the course of Services performed under this Agreement.
9.4. Injunctive Relief in Event of Breach. Because of the unique nature of the Confidential Information, the undersigned understands and agrees that DistantJob will suffer irreparable harm if the Referrer fails to comply with any of his obligations under this Section 8, and that monetary damages will be inadequate to compensate DistantJob for such breach. Accordingly, the Referrer agrees that DistantJob will, in addition to any other remedies available to it at law or in equity, be entitled to injunctive relief to enforce the terms of this Section 8.
10.1. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the Parties’ intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable, and the remainder of the provisions of this Agreement shall in no way be affected, impaired or invalidated as a result.
11.1. DistantJob will not be liable to the other Party for indirect, incidental, consequential, special, or exemplary damages (even if such Party has been advised of the possibility of such damages), such as, but not limited to, loss of revenue or anticipated profits or lost business. Any DistantJob’s liability arising from this Agreement towards the Referrer or any third party shall be limited to an amount of 50% of the total Compensation paid to the Referrer within the 12-month period preceding the arousal of such liability.
12.1. Except where provision for modification is made elsewhere in this Agreement, all provisions of this Agreement may be modified through amendments to the Agreement unilaterally by DistantJob with at least 10-day’s notice to the Referrer.
13.1. Any notices or delivery required here shall be deemed completed when hand-delivered, delivered by agent, or seven (7) days after being placed in the post, postage prepaid, to the Parties at the addresses contained in this Agreement or as the Parties may later designate in writing at the address provided by the Parties.
14.1. For purposes of this section, “force majeure” means an event beyond the control of either Party, which by its nature could not have been foreseen by such Party, or, if it could have been foreseen, was unavoidable, and includes without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) and failure of energy sources.
14.2. Neither Party shall be under any liability for failure to fulfill any obligation under this Agreement, so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered, or delayed as a consequence of circumstances of force majeure, provided that such Party shall have exercised all due diligence to minimize to the greatest extent possible the effect of force majeure on its obligations hereunder.
15.1. The Termination. The present Agreement shall be automatically terminated at the expiration of the period of the present Agreement unless the Agreement is renewed at the end of the mentioned Term.
16.1. This Agreement shall be construed and enforced in accordance with the laws of the Province of Quebec, Canada, which law shall prevail in the event of any conflict of the Parties.
16.2. The Parties submit to the jurisdiction of the courts of the Province of Quebec in Montreal, Canada, for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement.
17.1. In the event a dispute arises out of or in connection with this Agreement, the Parties shall attempt to resolve the dispute through friendly consultation.
17.2. If the dispute is not resolved within a period of 15 days, then any or all outstanding issues may be submitted to mediation in accordance with any statutory rules of mediation. If mediation is not successful in resolving the entire dispute or is unavailable, any outstanding issues shall be submitted to final and binding arbitration in accordance with the laws of the Province of Quebec, Canada,. The arbitrator’s award shall be final, and judgment may be entered upon it by any court in Montreal having jurisdiction within the Province of Quebec, Canada.
18.1. DisantJob shall be indemnified and held harmless by the Referrer from and against all claims of any nature whatsoever arising out of the Referrer’s performance.
18.2. The Referrer shall not be entitled to indemnification under this section for liability arising out of gross negligence or wilful misconduct of the Referrer or the breach by the Referrer of any provisions of this Agreement.
19.1. This Agreement contains the entire Agreement between the Parties. All negotiations and understandings have been included in this Agreement. Statements or representations which may have been made by any Party to this Agreement in the negotiation stages of this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement shall bind the Parties.
20.1. In this Agreement, the singular includes the plural, and the masculine includes the feminine and neuter and vice versa unless the context otherwise requires.
20.2. The capitalized headings in this Agreement are only for convenience of reference and do not form part of or affect the interpretation of this Agreement.
20.3. If any provision or part of any provision in this agreement is void for any reason, it shall be severed without affecting the validity of the balance of the Agreement.
20.4. Time is of the essence of this Agreement.
20.5. There are no representations, warranties, conditions, terms or collateral contracts affecting the transaction contemplated in this agreement except as set out in this Agreement.
20.6. Nothing in this Agreement is intended to constitute a partnership or a master and servant relationship between the Parties.
20.7. This Agreement binds and benefits the Parties and their respective heirs, executors, administrators, personal representatives, successors and assigns.
