This Referral Agreement (this “Agreement”) by and between Restaurant Technology Solutions, LLC, having an address at 633 W 5th St, Suite 1100, Los Angeles, CA 90071 (“Otter”) and the party accepting the Agreement (“Partner” or “you”) is made effective as of the earlier date you click to accept, or, where applicable, the date you accept via signature or click through (the “Effective Date”). By clicking to accept or otherwise indicating your acceptance of this Agreement, you hereby accept all the terms and conditions of this Agreement. If you are representing a corporation, partnership, LLC, or other entity, you must be authorized to sign for and bind such an entity in order to accept the terms of this Agreement, and you represent and warrant that you have the authority to do so. BY ENTERING INTO THE AGREEMENT, EACH PARTY IS REQUIRED TO USE ARBITRATION TO RESOLVE CLAIMS OR DISPUTES ON AN INDIVIDUAL BASIS, AS FURTHER SET FORTH IN SECTION 7.
REFERRAL ENGAGEMENT
Partner is engaged under this Agreement to refer potential new customers (“Qualified Leads”, as defined in Exhibit A) to Otter for the sale of Otter’s products and services (“Products”, as set forth in Exhibit A). This is a nonexclusive agreement; nothing in this Agreement will be construed to limit Otter’s right to engage other referrers for the sale of its Products to Qualified Leads or to pursue such sales opportunities itself, nor limit Partner's right to conduct its business activities outside of this Agreement. Partner will not, orally or in writing, accept or approve any obligation on behalf of Otter, nor will it represent itself to be the employee, agent, or exclusive representative of Otter, or as having the authority to bind Otter in any manner. Any order obtained by Partner will be binding upon Otter only if and when accepted by Otter in writing, in Otter’s sole and absolute discretion. The parties agree to the process outlined in Exhibit A.
COMMISSIONS, PRICING, AND OTHER COMMERCIAL TERMS
As the sole compensation due to Partner, Otter will pay Partner the amount indicated on Exhibit A for each Qualified Lead that purchases the applicable Product in accordance with the terms of Exhibit A (the “Commission”). In addition, the parties will comply with the pricing terms set forth in Exhibit A. Partner will be solely responsible for its costs incurred in connection with this Agreement.
TERM AND TERMINATION
3.1 Term. The initial term of this Agreement will commence on the Effective Date and continue for one (1) year (the “Initial Term”). Upon expiration of the Initial Term or any Renewal Term (as defined below), the term of this Agreement will automatically renew for successive periods of one (1) year (each, a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either party provides the other with written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current Term.
3.2 Termination. In the event of a material breach of this Agreement by a party, the other party may terminate this Agreement by giving five (5) days prior, written notice to the breaching party. Either party may terminate for any or no reason with thirty (30) days’ notice. In addition, this Agreement is terminable immediately without notice by a party if the other party: (i) voluntarily institutes insolvency, receivership, or bankruptcy proceedings; (ii) is involuntarily made subject to any bankruptcy or insolvency proceeding and such proceeding is not dismissed within ninety (90) days of the filing of such proceeding; (iii) makes an assignment for the benefit of creditors; or (iv) undergoes any dissolution or cessation of business.
3.3 Effect of Expiration or Termination. In the event of any termination of this Agreement: (i) Partner will cease all marketing activities relating to the Product; (ii) Partner will (as requested by Otter) promptly destroy or return to Otter all copies of any proposals, specifications, pricing information, other Confidential Information (as defined below), software files, user documentation and any other materials relating to the Product and will certify in writing that Partner has destroyed or returned all of these materials to Otter; and (iii) unless this Agreement is terminated by Otter due to Partner’s default pursuant to Section 3.2, Otter will pay Partner any Commissions then due and owing as set forth in Section 2 above. Except as provided in the preceding sentence, upon any termination of this Agreement, Otter will not be required to pay Partner any amounts whatsoever, and Partner hereby waives any and all indemnities, termination damages, or special damages of any other kind. Outstanding payment obligations and the following provisions will survive any termination or expiration of this Agreement: Sections 3–8.
LIABILITY
4.1 Indemnity. Partner must defend, indemnify, and hold harmless Otter and Otter’s affiliates and their respective officers, directors, and employees (collectively, the "Otter Indemnified Parties") from any and all damages, losses, liabilities, costs, fines, fees, penalties, and expenses, including reasonable outside attorneys’ fees, incurred by the Otter Indemnified Parties in connection with any third-party action, allegation, claim, or proceeding (each, a “Claim”) arising from Partner’s: (a) breach of any law, representation, warranty, or obligation under this Agreement; (b) gross negligence or willful misconduct in connection with its performance hereunder; (c) marketing activities or representations related to Otter or its Products not expressly authorized by Otter; (d) breach related to unpaid wages, benefits, taxes, or employee misclassification concerning Partner's employees, agents, or contractors engaged in connection with this Agreement. The foregoing obligation will be subject to Otter: (i) promptly notifying Partner of the Claim; (ii) providing Partner, at Partner’s expense, with reasonable cooperation in the defense of the Claim; and (iii) providing Partner with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that Partner may not settle any Claim in a manner that admits liability or imposes obligations on Otter without Otter's prior written consent.
4.2 Disclaimer. OTTER EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, OTTER MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE POTENTIAL MARKET FOR THE PRODUCT, OR THE AMOUNT OF COMMISSIONS THAT MAY BE GENERATED BY PARTNER HEREUNDER.
4.3 Limitation of Liability. NEITHER PARTY WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE BREACHING PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF YOUR CONTENT, OPPORTUNITY, REVENUES, PROFITS OR REPUTATION, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE CONTENT, GOODS OR SERVICES. EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED $1,000. THIS SECTION WILL NOT APPLY TO A PARTY’S OBLIGATIONS UNDER SECTION 4.1 OR FOR BREACH OF SECTION 5.
CONFIDENTIAL INFORMATION
Partner acknowledges that Otter’s financial and business information (including, but not limited to, customer lists, supplier information, pricing, product specifications, software code and documentation) constitute proprietary and confidential information of Otter or its suppliers (“Confidential Information”) and that the protection of the Confidential Information is of the highest importance. For the avoidance of doubt, the Confidential Information includes (and Otter will be the sole owner of all rights to) all Product-related proposals submitted to Qualified Leads, regardless of which party was involved in the creation of such proposals. Partner will keep the Confidential Information in strict confidence, will not disclose the Confidential Information except as allowed by this Agreement, will take appropriate steps to ensure that persons authorized to have access to the Confidential Information refrain from any unauthorized reproduction or disclosure of the Confidential Information, and will restrict access to and disclosure of the Confidential Information to Partner personnel who have a need to know and who have agreed to treat the Confidential Information in accordance with this Section 5. If Partner becomes aware of any unauthorized disclosure or use of the Confidential Information, Partner will promptly notify Otter and will, upon Otter’s request, take whatever action is reasonably appropriate. Partner acknowledges that the Confidential Information, including any copies made by Partner or Qualified Leads, is and will remain the sole property of Otter or its licensors. Partner will not remove any notice of copyright, trade name, trademark, or any other proprietary notice from the Confidential Information. Partner will not decompile or otherwise reverse engineer or decode the Product or defeat protection methods used for preventing unauthorized uses of the Product.
DATA AND IP RIGHTS
6.1 Data Privacy Compliance. Partner represents and warrants that it will comply with all applicable data protection and privacy laws and regulations (including, without limitation, the California Consumer Privacy Act (CCPA), where applicable) in connection with its collection, storage, processing, and transfer of any personal information related to potential Qualified Leads or otherwise received or handled in the performance of its obligations under this Agreement. Partner shall implement and maintain appropriate technical and organizational measures to protect such personal information against unauthorized access, use, or disclosure. Partner agrees to indemnify, defend, and hold harmless Otter and the Otter Indemnified Parties from and against any and all Claims arising from or related to Partner's breach of its obligations under this section or any violation of applicable data protection laws.
6.2 IP Rights.Otter retains all right, title, and interest in and to its trademarks, service marks, logos, trade names, and other intellectual property ("Otter IP"). Otter hereby grants Partner a limited, non-exclusive, non-transferable, revocable license during the Term to use specific Otter trademarks or logos expressly designated by Otter in writing ("Licensed Marks") solely in accordance with Otter's brand guidelines and any specific usage instructions provided by Otter, and only as strictly necessary to perform Partner's referral obligations under this Agreement using Otter-approved marketing materials. Partner shall not use Otter IP or the Licensed Marks in any manner that could reasonably be expected to damage the reputation or goodwill of Otter. Partner obtains no rights in Otter IP other than the limited license expressly granted herein. All goodwill arising from Partner's use of the Licensed Marks shall inure solely to the benefit of Otter. Otter shall own all rights to any marketing materials it provides to Partner or approves for use by Partner hereunder.
ARBITRATION
Except for claims or disputes related to a party’s intellectual property or confidential information, each party agrees that any claim or dispute arising out of or relating to this Agreement, or the breach thereof, will be settled by binding confidential arbitration before a single arbitrator, and not in a court of law. The arbitration will be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. A party who desires to initiate arbitration must provide the other party with a written demand for arbitration as specified in such rules. Unless the parties agree in writing otherwise, the arbitration will be conducted in the city of Los Angeles, California. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which he or she deems proper in the circumstances, only to the extent permitted by the Agreement and applicable law, provided that the arbitrator will not have the authority to award exemplary or punitive damages. The arbitrator must award the prevailing party its reasonable attorneys’ fees and expenses. Subject to the foregoing, the parties irrevocably consent and submit to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California, for any such disputes, and irrevocably waives any objections to the laying of venue in such courts.
GENERAL PROVISIONS
Relationship of the Parties. This Agreement does not create any relationship of agency, partnership, or employment between the parties. The parties are and will at all times remain independent contractors of each other. In no event will either party be deemed to act as the agent or legal representative of the other party, either express or implied, nor will either party have the express or implied right or power to act for or enter into any agreement on behalf of the other party or to otherwise bind the other party. Under no circumstance will either party represent or hold itself out as an agent of the other party. Force Majeure. Neither party will be liable for any nonperformance or delay caused by any condition or event beyond its reasonable control. No Waiver. The failure of either party to act upon any right, remedy, or breach of this Agreement will not constitute a waiver of that or any other right, remedy, or breach. No waiver will be effective unless made in writing and signed by an authorized representative of the waiving party. Notices. Unless specifically provided for to the contrary in this Agreement, all notices to a party under this Agreement (other than routine operational communications, which can be made via e-mail) will be delivered by hand or sent by express mail courier to such party’s address first stated above. Each party agrees to keep the other party informed of any changes to addresses. Amendments. This Agreement may not be amended except by a writing which specifically references this Agreement and is signed by authorized representatives of the parties. Assignment. Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of the other party; provided, however, that a party may, upon written notice to the other party and without the consent of the other party, assign or otherwise transfer this Agreement: (i) to any of its Affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise), provided that in all cases, the assignee agrees in writing to be bound by the terms and conditions of this Agreement. Any assignment or other transfer in violation of this Section will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns. Unenforceable Provisions. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, the other provisions will remain in full force and effect. If legally permitted, the unenforceable provision will be replaced with an enforceable provision that as nearly as possible gives effect to the parties’ intent. Complete Understanding. This Agreement, including Exhibit A, constitutes the final and complete agreement between the parties regarding the subject matter hereof, and supersede any prior or contemporaneous communications, representations, or agreements between the parties, whether oral or written, including, without limitation, any confidentiality or non-disclosure agreements. No term included in any confirmation, acceptance, purchase order, or any other similar document will change this Agreement or have any force or effect. Counterparts. This Agreement may be executed in counterparts (which may be exchanged by facsimile or PDF), each of which will be deemed an original, but all of which together will constitute the same Agreement.
PROCESS, PRODUCTS, COMMISSIONS, PRICING, AND REPORTING
Process
A. Partner will provide its relevant contacts that have a demonstrated interest in buying the Product by email or with a URL link provided by Otter (each, a “Referral”).
B. After being notified of a Referral, Otter, in its reasonable discretion, will determine whether or not such Referral constitutes a Qualified Lead and will notify Partner (e-mail acceptable) if such Referral does not constitute a Qualified Lead. Unless Otter notifies Partner in writing that Otter has determined a Referral to be a Qualified Lead, such Referral will not be considered a Qualified Lead for the purposes of this Agreement.
C. For the purposes of this Agreement, a “Qualified Lead” means a Referral that, as reasonably determined by Otter: (i) is not already a customer of Otter or an Affiliate (as defined below) of Otter; (ii) has not had any marketing contact from Otter (or any of its other sales representatives or business partners) or been referred to Otter at any time during the twelve (12) months preceding the date Partner notifies Otter of the Referral; and (iii) is, to Otter’s reasonable satisfaction, demonstrably interested in the applicable Product and is a decision-maker capable of entering into a contract for the applicable Product.
Marketing Efforts
D. Marketing Efforts. Partner will use commercially reasonable efforts to market and promote the applicable Products to Qualified Leads using only the marketing materials provided or approved by Otter. If the parties agree to a mutually-approved marketing strategy, each party agrees to comply with such marketing strategy.
E. Cooperation. For each Qualified Lead, Partner will provide Otter with such commercially reasonable cooperation and assistance as may be requested by Otter in connection with the pursuit of Product sales to such Qualified Lead, including, but not limited to: (i) cooperation and assistance in the preparation of proposals; and (ii) attendance at meetings with the Qualified Lead. In addition, the parties agree to perform the development and reporting as set forth in Exhibit A.
Commission Terms
For each Qualified Lead provided by Partner that results in the acquisition of a new Otter customer, Otter agrees to compensate Partner with a commission under the following terms:
A. Otter POS Referrals: A one-time payment of $2,000 (USD) shall be due to Partner for each Qualified Lead resulting in a new Otter POS customer location, upon the new customer reaching a threshold of 150 card-present transactions.
B. Otter Kiosk Referrals: A one-time payment of $500 (USD) shall be due to Partner for each Qualified Lead resulting in a new Otter Kiosk customer location.
C. Otter Order Manager Referrals: A one-time payment of $150 (USD) shall be due to Partner for each Qualified Lead resulting in a new Otter Order Manager customer location.
D. Otter’s obligation to pay commissions shall terminate if the referred customer ceases payment of Otter invoices or otherwise terminates their relationship with Otter.
E. Commissions shall be payable on a quarterly basis, within thirty (30) days following Otter's receipt of an invoice from Partner.
Reporting
A. Both parties agree to produce ongoing reporting for leads shared and new customers.
Onboarding and Support
A. Both parties agree to use shared tracker, agreed processes, and support escalation protocols to provide onboarding and support to joint customers.