Terms & Conditions
Last updated: January 11, 2021
The following terms and conditions govern your participation in the FSM Technologies, LLC (“we”, “us”, “Service Fusion” or the “Company”) Referral Program (the “Program”). To be eligible for compensation, you (the “Referrer”) must agree to be bound by the rules described below.
1. Referral Transactions
The "Service Fusion platform" is a business management platform owned by us consisting of web applications, mobile applications, and application programming interfaces used by field service businesses.
“Referral Transactions” means those transactions that are eligible for a Commission pursuant to this ‘Referral Transactions’ section of this Agreement.
“Referral” means any validly registered prospect referred by you who purchases the Service Fusion platform. To qualify as a Referral, a prospect must meet all of the ‘Submission, Acceptance and Validity’ criteria outlined herein.
b. Referrer Rights and Obligations. We grant you, subject to the limitations set forth below, a non-transferable, non-exclusive right to promote the Service Fusion platform to your prospects and customers.
c. Eligibility. To be eligible for a Commission, a prospect must be registered, accepted and valid in accordance with the ‘Submission, Acceptance and Validity’ section.
You are not eligible to receive a Commission or any other compensation from us based on transactions for any other products, based on transactions with a Company Lead (as defined below) or if: (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; or (ii) the applicable Referral objects to or prohibits such compensation or excludes such compensation from its payments to us or our affiliates. We may not grant Commission payment should any of the eligibility criteria set forth in this subsection fail to be met at any time.
d. Submission, Acceptance and Validity. Each prospect must have been referred to us through the Referrer's unique referral link. We generally will accept a prospect who, in our reasonable determination: (i) is a new potential customer of ours, and (ii) is not, at the time of submission or at any time in the past, one of our pre-existing customers, involved in an active sales process with the Company, or your affiliate. Notwithstanding the foregoing, we may choose not to accept a prospect in our reasonable discretion. If a prospect does not purchase the Service Fusion platform within one (1) year of registration, the prospect will be considered expired and you will need to complete the registration process again in order to re-qualify for a Commission for that prospect. We will, at our discretion, accept an order and provision a Service Fusion account for the prospect. A prospect is not considered valid: (i) if it is not registered, (ii) if it is not accepted, (iii) if it is expired, or (v) after this Agreement is expired or terminated.
2. Commission and Payment.
“Net Revenue” means the monthly fees that are actually paid to the Company by a Referral for the Service Fusion platform. Net Revenue shall: (i) be calculated net of any discounts, taxes payable and subsequent refunds, and (ii) shall exclude any implementation, customization, training, consulting or other professional services, or fees for third-party products or services.
“Commission” means an amount equal to three hundred dollars ($300.00) for each Referral that subscribes to the Service Fusion platform associated with the Referral Transaction. Service Fusion will award Commission for Referral Transactions after the Referrals first (1st) monthly renewal. If a Referral cancels prior to their first (1st) renewal, no Commission shall be awarded. No further compensation shall be paid to exceed three hundred dollars ($300.00).
b. Requirements for Payment; Forfeiture. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement; and (ii) provided all information necessary to facilitate payment via the Company’s referral management software.
Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in section 2(b)(i-iv) remain outstanding for six (6) months immediately following the close of a Referral Transaction, then your right to receive Commission arising from any and all Referral Transactions with the associated Referral will be forever forfeited (each, a “Forfeited Transaction”). We will have no obligation to pay you Commission associated with a Forfeited Transaction. Once you comply with all of the requirements in section 2(b)(i-iv), then you will be eligible to receive Commission on Referral Transactions, as long as these Referral Transactions do not involve the same Referral associated with a Forfeited Transaction.
c. Commission Payment. We, or one of our affiliates, will pay the Commission amount due to you within thirty (30) days after the end of each applicable calendar month in which the Commission from Referral Transactions is awarded. For example, a Referral with an initial Referral Transaction date of January 1 will be awarded a commission on February 1, following the second renewal. Commission for this Referral Transaction will be paid within thirty (days) following the end of March. In order for you to receive the Commission you must have submitted the required documentation set out at (2)b. Requirements for Payment; Forfeiture (ii) and (iii) above no later than 15 days after the end of the calendar month. If we have not received such documentation within this timeframe, we will not process the Commission payment until the next monthly payment date. We will determine the currency in which we pay the Commission, as well as the applicable conversion rate. The currency in which the Commission is paid in may be different from the currency that applies to the Referral Transaction. We will not pay more than one Commission or other similar referral fee on any given referral sale (unless we choose to in our discretion) and we may apportion a Commission if more than one of our partners has contributed to the close of a sale. We may withhold the Commission payment until the Revenue Share amount that we owe you is above $50.
d. Taxes. You are responsible for payment of all taxes applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
During the term of this Agreement, you may use our trademark as long as you follow the usage requirements in this section. You must: (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 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.
This Agreement does not create an exclusive agreement between you and us. Both you and we will 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.
5. Company's Proprietary Rights
No license to any software is granted by this Agreement. The Service Fusion platform is protected by intellectual property laws. The Service Fusion platform belongs to and is the property of us or our licensors (if any). We retain all ownership rights in the Service Fusion platform. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on content within the Service Fusion platform, or the Service Fusion platform in whole or in part, by any means, except as expressly authorized in writing by us. Company logos and other marks that we use from time to time are our trademarks and you may not use them without our prior written permission, except as otherwise set forth in this Agreement.
We encourage all customers and referrers to comment on the Service Fusion platform and provide suggestions for improving it. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Service Fusion platform, without payment to you.
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) Company 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.
7. Opt Out and Unsubscribing
You will comply promptly with all opt out, unsubscribe, "do not call" and "do not send" requests, including without limitation such requests from us related to Company Leads. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, "do not call" and "do not send" requests.
8. Referrer Representations and Warranties
You represent and warrant that: (i) you have all sufficient rights and permissions to provide the prospect data to us for our use in sales and marketing efforts or as otherwise set forth in this Agreement, (ii) your participation in this Referral Program will not conflict with any of your existing agreements or arrangements; and (iii) you own or have sufficient rights to use and to grant to us our right to use the Partner Marks.
You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Referral Program, (b) your noncompliance with or breach of this Agreement, or (c) our use of the Partner Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.
10. Disclaimers; Limitations of Liability
a. Disclaimer of Warranties. WE AND OUR AFFILIATES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE SERVICE FUSION PLATFORM, SERVICE FUSION CONTENT, OR THE REFERRAL PROGRAM FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES AND THE SERVICE FUSION PLATFORM MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE SERVICE FUSION PLATFORM IS PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE SERVICE FUSION PLATFORM INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
b. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
c. Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL REVENUE SHARE AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED REFERRAL TRANSACTION IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
You agree not to intentionally solicit for employment any of our employees or contractors during the term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement. Both you and we acknowledge that (i) any newspaper or other public solicitation not directed specifically to such person shall not be deemed to be a solicitation for purposes of this provision, and (ii) this provision is not intended to limit the mobility of either our employees or contractors.
a. Applicable Law. This Agreement shall be governed by the laws of the State of Texas, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in Dallas, Texas.
b. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
c. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
d. Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
e. Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public, including violating terms of The Controlling the Assault of Non-Solicited Pornography And Marketing (CAN-SPAM) Act of 2003.
f. Entire Agreement. This Agreement is the entire agreement between us for the Referral 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 your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Service Fusion platform or dependent on any oral or written public comments made by us regarding future functionality or features of the Service Fusion platform.
g. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
h. No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Service Fusion platform, our trademarks, or any other property or right of ours.
i. Sales by the Company. This Agreement shall in no way limit our right to sell the Service Fusion platform, directly or indirectly, to any current or prospective customers.
j. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.