WHEREAS Bitesize is engaged in the business of providing personalized SMS and related services to customers (the “Services”);
WHEREAS, the Parties desire to enter into a referral relationship under which Partner shall refer potential customers (“Dealer Leads”) to Bitesize in exchange for a Referral Payment (as defined below);
NOW THEREFORE, Subject to these terms and conditions of use, in addition to any terms contained on an Order Form referencing these terms (collectively, the “Agreement”), in consideration of the foregoing and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
1. Referral – Dealer Leads.
1.1. Partner may from time to time refer Dealer Leads, other than Excluded Leads, to Bitesize and wishes to do so in exchange for the compensation specified herein. “Excluded Lead” means any person or entity that, as of a date of determination, (a) has entered into a client agreement with Bitesize, or (b) has been directly contacted by Bitesize or any affiliate of Bitesize, or (c) has been referred or introduced to Bitesize by employees, agents, independent contractors, resellers, re-billers, carriers, or other partners or sub-partners.
1.2. To refer a Dealer Lead, Partner must provide to Bitesize: (a) contact information for such Dealer Lead; and (b) any other information reasonably requested by Bitesize. Further, Partner must organize and attend an initial meeting between Bitesize and the Dealer Lead. By referring a Dealer Lead to Bitesize, Partner represents and warrants that it has confirmed that such Dealer Lead desires to be referred to Bitesize.
1.3. Bitesize reserves the right, in its sole discretion, to accept or decline any Dealer Lead for any reason.
1.4. A Dealer Lead that has entered into a client service agreement (a “Client Agreement”) with Bitesize shall constitute a “Referred Client”.
1.5. Bitesize shall own all right, title and interest in and to such Client Agreement and Partner has no right, title or interest whatsoever in any such Client Agreement. All invoicing will occur directly between Bitesize and the Referred Dealer.
1.6 Unless otherwise agreed upon in an Order Form, if the Dealer Lead is part of a Dealer Group, only one Referred Dealer (one "Rooftop") will be eligible for referral payment. Bitesize reserves the right, in its sole discretion, to determine whether sales to additional dealers in the same group as a Referred Dealer shall constitute a Referred Dealer(s).
1.7 Bitesize shall remit payments to Partner per the terms of the Bitesize Referral Agreement Order Form
1.8 Bitesize shall remit payment to Partner within 60 days of receipt of payment from Referred Client.
2. Use of the Bitesize software platform
2.1 Any use of the Bitesize software platform is subject to the Bitesize Terms and Conditions available at https://www.bitesize.co/terms-and-conditions.
3. Partner Obligations
3.1. Partner will promptly notify Bitesize if Partner becomes aware of any information about the insolvency, financial instability, or change in ownership or business of a Referred Dealer.
3.2. Partner shall maintain a U.S. based bank account so that Bitesize may ACH deposit payments due to Partner or deduct amounts owed to Bitesize (the “Designated Account”). Partner shall immediately notify Bitesize of any changes to the Designated Bank Account or ACH routing information.
4. Publicity.
4.1. Partner is not authorized to make any representations or take any other action on behalf of Bitesize (including, without limitation, negotiating dealer agreements and agreeing to provide any services or pricing terms) and agrees that it shall avoid giving the impression that it has such authorization.
4.2. Partner may market and promote the Services to Leads and potential Leads; provided that Partner may not produce or distribute any materials or information containing any trademark, servicemark or logo of Bitesize without prior written approval of Bitesize.
4.3. Partner acknowledges that except as expressly authorized by Bitesize, it has no right to use any Bitesize trademarks, service marks, trade names, logos or other proprietary designations.
4.4. Neither party will issue a press release announcing the Service or make any other statements or representation regarding this Agreement or the relationship between the parties without the written consent and prior review and approval of content to be released by the other party.
5. Referral Payment.
5.1. Partner shall be compensated for Referred Dealers and Sub-Partners as set forth on the signed Order Form hereto (such compensation, the “Referral Payments”).
5.2 Partner does not have the right to audit or examine the books of Bitesize.
5.3. Notwithstanding the termination or expiration of this Agreement, Partner will continue to be paid Referral Payments for all Referred Dealers and all Sub-Partners, as applicable, provided however, that (a) Referral Payments will terminate immediately if Bitesize terminates this Agreement pursuant to Section 6.2 (or any subsection thereof) or Partner breaches Section 7 or Section 10 of this Agreement; and (b) with respect to any payment on account of a Sub-Partner, Referral Payments will terminate immediately if Bitesize terminates payments to such Sub-Partner for any reason. In the event that Bitesize sends Referral Payments to Partner’s Designated Account and such account is unable to accept payments for three consecutive months during which Partner does not update its Designated Account information with Bitesize, Bitesize’s obligations to make Referral Payments hereunder shall terminate immediately.
5.4. Partner shall be fully responsible for all tax obligations relating to the Referral Payments paid to Partner hereunder.
5.5. Partner shall notify Bitesize in writing of any errors with respect to any Referral Payment within 90 days of receipt thereof, failure to submit such notice during such 90 day period shall constitute a waiver by Partner of any claim relating to that error.
5.6. In the event that Referral Payments due hereunder for any month are less than $100.00, no Referral Payment shall be due for such month.
6. Termination
6.1. Either Party may terminate this Agreement with 30 days prior written notice to the other Party.
6.2. Either Party (the “Terminating Party”) may terminate this Agreement immediately if:
6.2.1. the other Party files for bankruptcy, receivership, insolvency, reorganization, dissolution, liquidation or similar proceedings;
6.2.2. the other Party had a bankruptcy, receivership, insolvency, reorganization, dissolution,
liquidation or similar proceedings proceeding instituted against it and such proceeding is not dismissed within 60 days;
6.2.3. the other Party makes an assignment for the benefit of its creditors or an offer of settlement, extension or composition to its creditors or an offer of settlement, extension or composition to its creditors generally;
6.2.4. a trustee, conservator, receiver or similar fiduciary is appointed for that party or substantially all of the other Party’s assets;
6.2.5. the other Party commits any fraud or misrepresentation or engages in any act or omission that may damage the reputation, business or goodwill of the Terminating Party.
6.2.6. The other Party breaches any of the provisions of this Agreement.
7. Confidential Information
Each Party acknowledges that all information and data belonging to or relating to the business of the other Party is confidential (“Confidential Information”). This Agreement, the list of persons constituting Referred Dealers hereunder, and all payments and reports delivered hereunder constitute the Confidential Information of Bitesize. Each Party agrees that it will not use for its own purposes, and will retain in strictest confidence all Confidential Information of the other Party and that each party will safeguard such Confidential Information by using the same degree of care and discretion that it uses to protect its own confidential information. No Party will be obligated to maintain the confidentiality of information it is required to reveal by law or in performing its obligations under this Agreement.
7.1. The Company and Partner acknowledge that Partner may have performed work, activities, services or made efforts on behalf of or for the benefit of the Company, or related to the current or prospective business of the Company in anticipation of Partner’s involvement with the Company, that would have been “Services” if performed during the term of this Agreement, for a period of time prior to the Effective Date of this Agreement (the “Prior Consulting Period”). Accordingly, if and to the extent that, during the Prior Consulting Period: (i) Partner received access to any information from or on behalf of the Company that would have been Confidential Information (as defined below) if Partner received access to such information during the term of this Agreement; or (ii) Partner (a) conceived, created, authored, invented, developed or reduced to practice any item (including any intellectual property rights with respect thereto) on behalf of or for the benefit of the Company, or related to the current or prospective business of the Company in anticipation of Partner’s involvement with the Company, that would have been an Invention (as defined below) if conceived, created, authored, invented, developed or reduced to practice during the term of this Agreement; or (b) incorporated into any such item any pre-existing invention, improvement, development, concept, discovery or other proprietary information that would have been a Prior Invention (as defined below) if incorporated into such item during the term of this Agreement; then any such information shall be deemed “Confidential Information” hereunder and any such item shall be deemed an “Invention” or “Prior Invention” hereunder, and this Agreement shall apply to such activities, information or item as if disclosed, conceived, created, authored, invented, developed or reduced to practice during the term of this Agreement.
7.1.2. Partner understands that during the Relationship, the Company intends to provide Partner with certain information, including Confidential Information (as defined below), without which Partner would not be able to perform Partner’s duties to the Company. At all times during the term of the Relationship and thereafter, Partner shall hold in strictest confidence, and not use, except for the benefit of the Company to the extent necessary to perform the Services, and not disclose to any person, firm, corporation or other entity, without written authorization from the Company in each instance, any Confidential Information that Partner obtains from the Company or otherwise obtains, accesses or creates in connection with, or as a result of, the Services during the term of the Relationship, whether or not during working hours, until such Confidential Information becomes publicly and widely known and made generally available through no wrongful act of Partner or of others who were under confidentiality obligations as to the item or items involved. Partner shall not make copies of such Confidential Information except as authorized by the Company or in the ordinary course of the provision of Services. Partner may disclose Confidential Information only to Partner’s personnel who have a need to know the Confidential Information for Partner to perform its obligations under the Partnership Agreement and who are bound by a confidentiality agreement at least as restrictive as the terms of this Agreement.
7.1.3. Partner understands that “Confidential Information” means any and all information and physical manifestations thereof not generally known or available outside the Company and information and physical manifestations thereof entrusted to the Company in confidence by third parties, whether or not such information is patentable, copyrightable or otherwise legally protectable. Confidential Information includes, without limitation: (i) Company Inventions (as defined below); and (ii) technical data, trade secrets, know-how, research, product or service ideas or plans, software codes and designs, algorithms, developments, inventions, patent applications, laboratory notebooks, processes, formulas, techniques, biological materials, mask works, engineering designs and drawings, hardware configuration information, agreements with third parties, lists of, or information relating to, employees and Partners of the Company (including, but not limited to, the names, contact information, jobs, compensation, and expertise of such employees and Partners), lists of, or information relating to, suppliers and customers (including, but not limited to, customers of the Company on whom Partner called or with whom Partner became acquainted during the Relationship), price lists, pricing methodologies, cost data, market share data, marketing plans, licenses, contract information, business plans, financial forecasts, historical financial data, budgets or other business information disclosed to Partner by the Company either directly or indirectly, whether in writing, electronically, orally, or by observation.
7.1.4. Partner’s agreements in this Section 4 are intended to be for the benefit of the Company and any third party that has entrusted information or physical material to the Company in confidence. During the term of the Relationship and thereafter, Partner will not improperly use or disclose to the Company any confidential, proprietary or secret information of Partner’s former clients or any other person, and Partner will not bring any such information onto the Company’s property or place of business.
7.1.5. This Agreement is intended to supplement, and not to supersede, any rights the Company may have in law or equity with respect to the protection of trade secrets or confidential or proprietary information.
7.1.6. Notwithstanding the foregoing, the U.S. Defend Trade Secrets Act of 2016 (“DTSA”) provides that an individual shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made (i) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (iii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. In addition, DTSA provides that an individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.
7.2. Partner understands that “Inventions” means discoveries, developments, concepts, designs, ideas, know how, modifications, improvements, derivative works, inventions, trade secrets and/or original works of authorship, whether or not patentable, copyrightable or otherwise legally protectable. Partner understands this includes, but is not limited to, any new product, machine, article of manufacture, biological material, method, procedure, process, technique, use, equipment, device, apparatus, system, compound, formulation, composition of matter, design or configuration of any kind, or any improvement thereon. Partner understands that “Company Inventions” means any and all Inventions that Partner or Partner’s personnel may solely or jointly author, discover, develop, conceive, or reduce to practice in connection with, or as a result of, the Services performed for the Company or otherwise in connection with the Relationship, except as otherwise provided in Section 5(g) below.
7.2.1. Partner will promptly make full written disclosure to the Company, will hold in trust for the sole right and benefit of the Company, and hereby assigns to the Company, or its designee, all of Partner’s right, title and interest throughout the world in and to any and all Company Inventions and all patent, copyright, trademark, trade secret and other intellectual property rights and other proprietary rights therein. Partner hereby waives and irrevocably quitclaims to the Company or its designee any and all claims, of any nature whatsoever, that Partner now has or may hereafter have for infringement of any and all Company Inventions. Any assignment of Company Inventions includes all rights of attribution, paternity, integrity, modification, disclosure and withdrawal, and any other rights throughout the world that may be known as or referred to as “moral rights,” “artist’s rights,” “droit moral,” or the like (collectively, “Moral Rights”). To the extent that Moral Rights cannot be assigned under applicable law, Partner hereby waives and agrees not to enforce any and all Moral Rights, including, without limitation, any limitation on subsequent modification, to the extent permitted under applicable law. If Partner has any rights to the Inventions, other than Moral Rights, that cannot be assigned to the Company, Partner hereby unconditionally and irrevocably grants to the Company during the term of such rights, an exclusive, irrevocable, perpetual, worldwide, fully paid and royalty-free license, with rights to sublicense through multiple levels of sublicensees, to reproduce, distribute, display, perform, prepare derivative works of and otherwise modify, make, have made, sell, offer to sell, import, practice methods, processes and procedures and otherwise use and exploit, such Inventions.
7.2.2. Partner shall assist the Company, or its designee, at its expense, in every proper way in securing the Company’s, or its designee’s, rights in the Company Inventions and any copyrights, patents, trademarks, mask work rights, Moral Rights, or other intellectual property rights relating thereto in any and all countries, including the disclosure to the Company or its designee of all pertinent information and data with respect thereto, the execution of all applications, specifications, oaths, assignments, recordations, and all other instruments which the Company or its designee shall deem necessary in order to apply for, obtain, maintain and transfer such rights, or if not transferable, waive and shall never assert such rights, and in order to assign and convey to the Company or its designee, and any successors, assigns and nominees the sole and exclusive right, title and interest in and to such Company Inventions, and any copyrights, patents, mask work rights or other intellectual property rights relating thereto. Partner’s obligation to execute or cause to be executed, when it is in Partner’s power to do so, any such instrument or papers shall continue during and at all times after the end of the Relationship and until the expiration of the last such intellectual property right to expire in any country of the world. Partner hereby irrevocably designates and appoints the Company and its duly authorized officers and agents as Partner’s agent and attorney-in-fact, to act for and in Partner’s behalf and stead to execute and file any such instruments and papers and to do all other lawfully permitted acts to further the application for, prosecution, issuance, maintenance or transfer of letters patent, copyright, mask work and other registrations related to such Company Inventions. This power of attorney is coupled with an interest and shall not be affected by Partner’s subsequent incapacity.
7.2.3. Partner acknowledges that Partner has no expectation of privacy with respect to the Company’s telecommunications, networking or information processing systems (including, without limitation, files, e-mail messages, and voice messages) and that Partner’s activity and any files or messages on or using any of those systems may be monitored or reviewed at any time without notice. Partner further acknowledges that any property situated on the Company’s premises or systems and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel at any time with or without notice. At the time of termination of the Relationship, Partner will deliver to the Company (and will not keep in Partner’s possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory notebooks, materials, flow charts, equipment, other documents or property, or reproductions of any of the aforementioned items developed by Partner or Partner’s personnel pursuant to the Relationship or otherwise belonging to the Company, its successors or assigns.
7.2.4. During the periods of time during which Partner is restricted in taking certain actions by the terms of Section 7.3. of this Agreement (the “Restriction Period”), Partner shall inform any entity or person with whom Partner may seek to enter into a business relationship (whether as an owner, client or otherwise) of Partner’s contractual obligations under this Agreement. Partner acknowledges that the Company may, with or without prior notice to Partner and whether during or after the term of the Relationship, notify third parties of Partner’s agreements and obligations under this Agreement. Upon written request by the Company, Partner will respond to the Company in writing regarding the status of Partner’s engagement or proposed engagement with any party during the Restriction Period.
7.3. During the term of the Relationship, Partner will not influence any of the Company’s clients, licensors, licensees or customers from purchasing Company products or services or solicit or influence or attempt to influence any client, licensor, licensee, customer or other person either directly or indirectly, to direct any purchase of products and/or services to any person, firm, corporation, institution or other entity in competition with the business of the Company.
7.3.1. Partner represents and warrants that Partner’s performance of all the terms of this Agreement does not and will not breach any agreement Partner has entered into, or will enter into, with any third party, including without limitation any agreement to keep in confidence proprietary information or materials acquired by Partner in confidence or in trust prior to or during the Relationship. Partner will not disclose to the Company or use any inventions, confidential or non-public proprietary information or material belonging to any previous client, employer or any other party. Partner will not induce the Company to use any inventions, confidential or non-public proprietary information, or material belonging to any previous client, employer or any other party. Partner further represents that Partner does not presently perform or intend to perform, during the term of the Partnership Agreement, consulting or other services for companies whose businesses or proposed businesses in any way involve products or services that would be competitive with the Company’s products or services, or those products or services proposed or in development by the Company during the term of the Partnership Agreement.
7.3.2. Partner acknowledges that Partner has no expectation of privacy with respect to the Company’s telecommunications, networking or information processing systems (including, without limitation, files, e-mail messages, and voice messages) and that Partner’s activity and any files or messages on or using any of those systems may be monitored or reviewed at any time without notice. Partner further acknowledges that any property situated on the Company’s premises or systems and owned by the Company, including disks and other storage media, filing cabinets or other work areas, is subject to inspection by Company personnel at any time with or without notice. At the time of termination of the Relationship, Partner will deliver to the Company (and will not keep in Partner’s possession, recreate or deliver to anyone else) any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings, blueprints, sketches, laboratory notebooks, materials, flow charts, equipment, other documents or property, or reproductions of any of the aforementioned items developed by Partner or Partner’s personnel pursuant to the Relationship or otherwise belonging to the Company, its successors or assigns.
8. Indemnity Obligation and Set-Off
8.1. Subject to the limitation of liability set forth in Section 9 below, Bitesize shall indemnify, defend, and hold Partner harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Bitesize, (ii) made in whole or in part in accordance with Partner specifications, (iii) that are modified after delivery by Bitesize, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Partner continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Partner’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Bitesize to be infringing on the intellectual property rights of a third party, Bitesize may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Partner a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement.
8.2 Partner will defend, indemnify, and hold harmless Bitesize and its affiliates, subsidiaries, successors, assignees, owners, directors, officers, employees, contractors, suppliers, representatives, and agents from and against any and all claims, governmental investigations, awards, settlements, damages, fines, injuries, penalties, and costs arising out of or related to (i) any breach or alleged breach of this Agreement by Partner or (ii) Partner’s gross negligence or willful misconduct.
8.3 The party seeking indemnification (the “Indemnified Party”) will give prompt written notice to the party from whom indemnification is sought (the “Indemnifying Party”) of any claim for which indemnification is sought under this Agreement. Failure to give such notice will not relieve the Indemnifying Party of its obligation to provide indemnification except to the extent that such failure materially adversely affects the ability of the Indemnifying Party to defend the applicable claim. The Indemnifying Party may elect to assume the defense and control of any such claim at its own cost and expense and the Indemnified Party will have the right to be represented by its own counsel at its own cost in such matters. The Indemnifying Party will use counsel reasonably acceptable to the Indemnified Party. Neither the Indemnifying Party, nor the Indemnified Party, will settle or dispose of any such matter in any manner without the prior written consent of the other party, which will not be unreasonably withheld or delayed. Each party will reasonably cooperate with the other party and its counsel in the course of defense of any claim, such cooperation including, without limitation, providing documents, information, and/or witnesses.
8.4. Bitesize may at any time, with or without notice to Partner, apply any Referral Payments, residuals, commissions or other credit balance owed to the Partner by Bitesize to (a) reduce any past due amounts for Software purchases or any other delinquent amounts of any kind owed by Partner to Bitesize, and (b) to offset all expenses of any kind, including but not limited to attorneys’ fees, disbursements, and court costs incurred by Bitesize as a result of the conduct of Partner, and (c) to pay the settlement of any lawsuit, action, or proceeding initiated as a result of Partner’s conduct.
9. LIMITATION OF LIABILITY
9.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, BITESIZE AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND BITESIZE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY PARTNER TO BITESIZE FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT BITESIZE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. Agreement of Non-Solicitation —
10.1. During the period of time that this Agreement is in effect and after termination of this Agreement for so long as a Referred Dealer is a customer of Bitesize or such maximum length as may be allowed under applicable law, Partner shall not directly or indirectly on its own behalf or on behalf of any other party solicit or take any action that would cause or is intended to cause any Referred Dealer to terminate its relationship with Bitesize.
10.2. During the period of time that this Agreement is in effect and for a period of three years after the termination of this Agreement, Partner shall not directly or indirectly on its own behalf or on behalf of any other party solicit or take any action that would cause or is intended to cause (a) any employee of Bitesize; or (b) any individual, representative, entity, agent of Bitesize that solicits Dealer Leads for Bitesize to terminate their relationship with Bitesize.
10.3. For the avoidance of doubt, the following actions shall be deemed not to violate this Section 10: (a) general advertisements released on a market-wide basis; and (b) recommendations made in response to direct requests by a customer of Partner for a SMS company other than Bitesize.
10.4. As used in this Section 10, Partner shall mean and refer to Partner its parents, subsidiaries, affiliates and each of their respective directors, members, managers, officers, agents, employees, sales representatives and contractors.
11. Representations, Warranties and Covenants –
Each Party represents and warrants to the other Party and agrees as follows:
11.1. The person or entity executing this Agreement on its behalf had the full authority, right and power to enter into and execute this Agreement.
11.2. The execution and delivery of this Agreement on its behalf has been expressly authorized and approved.
11.3. Its performance under this Agreement and, with respect to Partner, the receipt of Referral Payments does not violate: (1) any contractual obligation to which it is subject; (2) any duties or obligations it may have to any other person or entity; and (3) any federal or state laws or regulations applicable to it or its actions taken in furtherance of this Agreement.
11.4. This Agreement represents its valid obligation and is fully enforceable against it in accordance with its terms.
11.5. It and its officers, directors and members are not a party to any pending litigation which if adversely determined could have a material adverse effect on its financial condition.
11.6. It is a limited liability company, corporation, or partnership, as applicable, authorized, validly existing and in good standing under the laws of the state of its formation.
12. Miscellaneous
12.1. Other than in connection with a breach of Section 7 or Section 10, in no event shall either Party be liable for under any theory of tort, contract, strict liability or other legal or equitable theory for lost profits, exemplary, punitive, special, incidental, indirect, consequential damages or the like, each of which is hereby excluded regardless of whether such damages were foreseeable or whether the party had been advised of the possibility of such damages.
12.2. Partner may not assign this Agreement, in whole or part, without obtaining the prior written consent from Bitesize, which consent shall not be unreasonably withheld.
12.3 The parties shall endeavor to resolve any dispute with respect to this Agreement in good faith within 30 days of a dispute being raised by one party with the other party. Any unresolved controversy or claim arising out of or relating to this Agreement shall be submitted to binding arbitration under the auspices of JAMS in San Francisco, California in accordance with its rules then in effect, and judgment upon any award rendered in such arbitration will be binding and may be entered in any court having jurisdiction thereof. In any such action or proceeding, the prevailing party will be entitled to recover costs and attorneys’ fees. The decision of the arbitrator shall be final, binding, and conclusive upon the parties. Such decision shall be written and shall be supported by written findings of fact and conclusions which shall set forth the award, judgment, decree or order awarded by the arbitrator. This dispute resolution provision shall be governed by the Federal Arbitration Act.
12.4 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
12.5 This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.
12.6 Force Majeure. No party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement except for any obligations to make payments to the other party hereunder, when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control (“Force Majeure Event”). The party suffering a Force Majeure Event shall give notice within 3 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized.
12.7. Partner is and at all times shall be an independent contractor, and this Agreement does not create a joint venture, contractor, partnership, employment, or agency relationship between the Parties.
12.8. All communications and notices under this Agreement shall be in writing and shall be delivered personally, by certified mail, return receipt requested, or by overnight mail by a nationally recognized courier service addressed to the applicable party as set forth below:
To Bitesize Inc:
PO Box 4164
Stateline, NV 89449
Attention: Legal Department
12.9. Any amendment or supplement to this Agreement shall be in a writing duly executed by Bitesize and the Partner.
12.10. If any provision of this Agreement is held to be illegal, invalid or unenforceable, each Party agrees that the validity, legality and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
12.11. The waiver of, or failure of, either party to exercise in any respect a right provided for in this Agreement shall not be deemed a waiver of any further right hereunder.
12.12. This Agreement supersedes all prior verbal and written agreements between the parties and constitutes the complete and exclusive statement of the terms and conditions between the parties covering the performance hereof, and cannot be amended except as provided herein or by written agreement of both parties.
12.13. The provisions of Sections 7, 8, 10, and 12 shall survive the termination of this Agreement.
12.14: compliance: Partner shall, at all times, maintain compliance with all applicable laws, regulations where Partner operates.