Referral Terms and Conditions
These Referral Terms and Conditions (the ”Agreement”) shall govern your participation in the Referral Program (as defined herein) offered by Promethean IT, LTD., a New York state corporation (“Promethean”). By participating in the Referral Program, you (“Referrer”) agree to these Referral Terms and Conditions. If you do not agree to all of the terms and conditions of this Agreement, you may not participate in the Referral Program. Promethean and Referrer shall each be referred to herein as a “party” and collectively as the “parties.” This Agreement constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral.
Referral Program. Promethean has developed proprietary services to assess, manage, and deploy IT infrastructure (the “Promethean Services”) and Promethean wishes to enhance the marketing and promotion of the Promethean Services by paying for qualified referrals to potential customers of the Promethean Services, subject to these Terms and Conditions (the “Referral Program”). Any description of the Promethean Services by Referrer shall be in accordance with this Agreement and Promethean’s then- current applicable sales information, pricing, terms of use and license agreement.
Referrer Referral Fee. In consideration for Referrer's performance of the services described herein, and subject to the terms and conditions herein, Promethean will award Referrer One Thousand Dollars ($1,000) for any Leads that become a Prospect as defined herein. Referrer is not eligible to earn Referral Fees on Promethean Customer renewals beyond the term of the original contract. Referral Fees will not be paid for Customer payments made for state and local taxes, duties, one-time fees, professional services provided by Promethean or a third party, resale systems, software services powered by a third party, free trials, or proof-of-concept systems.
Leads, Prospects, and Customers. “Lead” shall mean any entity or person, which Referrer presents to Promethean as a prospective customer of the Promethean Services, in accordance with the instructions and guidelines communicated to Referrer for such purpose. “Prospect” shall mean any eligible Lead that Promethean qualifies for a sales meeting on the criteria below with the goal of contracting with said Prospect to become a new, paying customer of the Promethean Services. Prospect criteria are (1) Timing: Lead must be making a service evaluation in the next 90 days; (2) Contact Fit: Lead’s representative can articulate, influence and explain Lead’s decision-making process; (3) Business Pain: Lead’s representative can identify relevant IT business problem; (4) MDM: Lead has or is willing to explore Promethean’s instance of NinjaRMM/Addigy; (5) Devices/OS: Lead is mainly Apple and/or Windows PC organization; (6) Mail Exchange/MX: Lead has G-Suite/O365 or is willing to explore. “Customer” shall mean any Prospect that becomes a new, paying customer of the Promethean Services (subject to Promethean’s acceptance of such entity or person as a paying customer or subscriber, as set forth in section 5 hereof). Previous and existing Promethean customers are excluded as Customers. Leads submitted to Promethean will take place via www.prometheanit.com/customer-referrals with the details of each new Lead including at a minimum the lead company name, web address, primary lead contact name, primary lead contact email address, primary lead contact phone number, or in such other manner as communicated to Referrer for such purpose. Lead acceptance or rejection is at the sole discretion of Promethean. Leads may be rejected for the following, but not limited to, the following reasons: lead is already a lead, prospect, or customer of Promethean, lead has already been referred, Promethean does not serve lead’s indicated industry, lead is provided by an entity in which Promethean does not intend to engage related to this Agreement.
Pre-Existing Leads & Prospect Activity. Leads and Prospects with current activity documented in the Promethean customer relationship management system may be excluded as Customers. Promethean has the right, at its sole discretion, to determine any and all eligibility of future leads and prospects referred through this Agreement.
Prospect Acceptance or Rejection. Promethean has the right, in its sole discretion, to enter into or not enter into any agreement with a Prospect. If Promethean declines to enter into an agreement with a Prospect, or if Prospect declines to enter into an agreement with Promethean, Promethean will not be obligated to pay any Referral Fee to Referrer.
Pricing. Promethean has the sole right to set prices for the Promethean Services, to set the terms and conditions of the Promethean Services, and to make other adjustments to, and to discontinue offering or selling, the Promethean Services, without liability of any kind to the Referrer.
Referrer Obligations. Referrer’s primary responsibility under this Agreement is to introduce, advocate, promote, and endorse the Promethean Services by participating in the Referral Program. Promethean will not be required to pay Referrer for any marketing and/or promotional activities other than as set forth in Section 2.
Approval of Advertising. Referrer shall use only advertising and promotional materials supplied or approved in writing by Promethean. Referrer agrees that Promethean is the exclusive owner of all trademarks and trade names relating to the Promethean Services. Referrer may use such trademarks and trade names only for the purpose of advertising and promoting the Promethean Services. Referrer shall acquire no proprietary or other rights with respect to such trade names, trademarks or other intellectual property (described below) of Promethean. Any unauthorized use of Promethean’s trademarks or trade names without explicit prior written approval will be considered a breach of this Agreement, and sufficient cause for termination.
Intellectual Property. For the purpose of this Agreement, the term “intellectual property” shall include, but is not limited to, any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, and other industrial property rights; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing), including software or programming delivered hereunder. Promethean exclusively owns all rights, title, interest, and intellectual property in its software, service, and related products. All modifications, extensions, enhancements, customizations, scripts, and derivative works of Promethean’s software, service, and related products made as a result of Promethean’s experience with, feedback form, or feature requests by Referrer or end-users of the Promethean services and products are the property of Promethean.
Relationship between the Parties. Except in the case of Promethean employees, in performing the obligations of this Agreement, Referrer shall operate independently and shall not act as an employee, agent or joint venturer of Promethean. Referrer shall in no way have the authority to bind or obligate Promethean in any respect. Referrer may not make additional representations and warranties on Promethean’s behalf including, and with respect to, the features, prices, rates, terms, and conditions of the Promethean Services. Nothing in this Agreement shall, or shall be deemed to, sell, transfer or assign any right, title or interest of any kind in or to the Promethean Services from Promethean to Referrer, which right, title, and interest shall at all times be and remain owned solely by Promethean. All goodwill generated by marketing the Promethean Services by Referrer will inure exclusively to the benefit of Promethean.
Promethean’s Obligations regarding payment of Referral Fees for Leads that become Prospects. Referral Fees owed by Promethean to Referrer for Leads that become Prospects shall be paid by check within forty-five (45) days after the end of the calendar quarter in which Promethean determines such successful Lead qualification to Prospect.
Promethean’s Obligations regarding payment of Referral Fees for Prospects that become Customers. Referral Fees owed by Promethean to Referrer for Prospects that become Customers shall be paid by check within forty-five (45) days after the end of the calendar quarter in which the later of the following occurs: (i) the Customer has completed any applicable acceptance period or similar period, and (ii) six (6) months has elapsed from when Promethean received payment from the Customer. Referral Fees shall only be due to Referrer upon a Customer’s successful conversion to a non-refundable paid account. Referral fees will not be paid for Promethean Customers in arrears.
Tax Reporting. For payments above $600, Promethean is required to issue Referrer who is not a Promethean employee an IRS Form 1099-MISC. Referrer must provide the required identification information to Promethean when requested and no payment will be made until it is provided.
Term and Termination of this Agreement. Promethean may terminate the Referral Program and this Agreement for convenience at any time. Upon termination of this Agreement, Promethean shall be obligated to pay Referral Fees to Referrer only if the qualification conditions for Leads and Prospects contained in sections 11 and 12, respectively, have been met prior to the date of termination.
NO WARRANTY. LIMITATION OF LIABILITY. Except as expressly set forth in the terms of use and subscription agreement for the Promethean Services, Promethean provides the Promethean Services “as is” and with all faults. Promethean hereby disclaims all other remedies, warranties, guarantees, obligations, representations and liabilities, express or implied, arising in fact, law, equity, contract, tort, under statute, under warranty or otherwise, with respect to the subject matter of this Agreement and the Promethean Services, including but not limited to: (i) any implied warranty or condition of merchantability or fitness for a particular purpose; (ii) any implied warranty or condition arising from a course of performance, course of dealing or usage or trade; (iii) any obligation, liability right, claim or remedy in tort, whether or not arising from active, passive or imputed negligence, contributory negligence, vicarious liability or strict products liability of Promethean and its officers, directors, employees, agents, and representatives, and (iv) any obligation, liability or responsibility for loss of service or damage to any equipment or part thereof, or any Promethean service delivered or provided. Further, Promethean does not warrant that the Promethean Services will be free of bugs, errors, viruses or other defects. Any damages arising out of the subject matter of this Agreement shall not exceed the total referral fees in aggregate earned by Referrer for the past six (6) months prior to the claim giving rise to such damages.
DISCLAIMER OF CERTAIN DAMAGES. In no event will Promethean or its officers, directors, employees, agents, representatives, vendors and contractors be liable for the cost to cover or for any incidental, indirect, special, aggravated, punitive, consequential or similar damages or liabilities whatsoever (including, but not limited to loss of data, information, revenue, profit or business) arising out of or relating to this Agreement or the use or inability to use the Promethean Services, whether arising in fact, law, equity, contract, tort (including negligence as described above), strict liability, under statute, under warranty or other theory even if Promethean has been advised of the possibility of such damages.
Confidentiality (not applicable to Promethean employees). Both Promethean and Referrer will not disclose to a third-party any confidential information regarding Promethean, Referrer, or any customer. Promethean and Referrer agree that any information provided by one party to the other in connection with this Agreement, and both parties’ performance of the services hereunder, is the confidential information of both parties. Both parties agree that they will use such confidential information only for purposes specifically contemplated in this Agreement and for no other purpose, and will treat such confidential information with the same degree of care as it does its own confidential information, but with no less than reasonable care. Even if the information is not expressly identified as being confidential, these obligations apply to information, which a reasonable person would understand to be confidential, even in the absence of explicit identification. If Promethean, Referrer or their sub-agents or employees have been legally compelled to disclose any such information, then Promethean, Referrer or their sub-agents or employees so compelled shall (i) give Promethean, or Referrer, as applicable, reasonable prior written notice to allow Promethean or Referrer, as applicable, to seek a protective order or other appropriate remedy; (ii) disclose only the limited information specifically required to be disclosed, and (iii) use commercially reasonable efforts to obtain confidential treatment for any confidential information so disclosed. In its own agreements with its employees and sub-agents, Promethean and/or Referrer shall ensure that all of its employees and sub-agents are aware of this confidentiality requirement. This section shall survive the termination of this Agreement.
Non-Solicitation (not applicable to Promethean employees). Referrer agrees that during this Agreement and for one (1) year following the termination of this Agreement for any reason, Referrer will not, for any reason, directly or indirectly, in any way, solicit, induce, influence, refer, divert, or participate in the referral, solicitation or diversion of any Promethean customer to switch to or contract for an IT infrastructure offering substantially similar to the Promethean Services. This section shall survive the termination of this Agreement.
No Right to Service (applicable only to Promethean employees and 1099 contractors). REFERRER ACKNOWLEDGES AND AGREES THAT THIS AGREEMENT AND THE SUBJECT MATTER CONTEMPLATED HEREUNDER DO NOT CONSTITUTE AN EXPRESS OR IMPLIED PROMISE OF CONTINUED ENGAGEMENT AS AN EMPLOYEE OR SERVICE PROVIDER FOR ANY PERIOD AT ALL, AND SHALL NOT INTERFERE WITH REFERRER’S RIGHT OR PROMETHEAN’S RIGHT TO TERMINATE REFERRER’S RELATIONSHIP WITH PROMETHEAN AT ANY TIME, WITH OR WITHOUT CAUSE OR NOTICE. To the extent any agreement or contract governing or related to the employment or service relationship between Promethean and Referrer (including without limitation any agreement containing restrictive covenants or relating to confidential or proprietary information or intellectual property) contains terms that conflict with this Agreement, the terms of such other Agreement will govern, with the remainder of this Agreement remaining in full force and effect and controlling.
Indemnification. Referrer agrees to indemnify, defend, and hold harmless Promethean and its affiliates, representatives, agents, customers, Referrals, successors, officers, directors, and employees from and against any and all third party claims, actions, causes of action, demands, costs, liabilities, expenses, and damages (including reasonable attorneys’ fees and expenses) arising out of or in connection with: (i) Referrer’s breach of any provision of this Agreement; (ii) any reckless or willful act or omission by or on behalf of Referrer in connection with this Agreement. If any action shall be brought against a Promethean party (the "Claimant") in respect to which indemnity may be sought from Referrer (the "Indemnifying Party") pursuant to the provisions of this section, the Claimant shall promptly notify the Indemnifying Party in writing, specifying the nature of the action and the total monetary amount sought or other such relief as is sought therein. The Claimant shall cooperate with the Indemnifying Party at the Indemnifying Party's expense in all reasonable respects in connection with the defense of any such action. The Indemnifying Party may upon written notice to Claimant undertake to conduct all proceedings or negotiations in connection therewith and assume the defense thereof, and if it so undertakes, it shall also undertake all other required steps or proceedings to settle or defend any such action, including the employment of counsel which shall be satisfactory to Claimant, and payment of all expenses. Claimant shall have the right to employ separate counsel and participate in the defense at Claimant’s own expense. The Indemnifying Party shall reimburse Claimant upon demand for any payments made or loss suffered by it at any time after the date of tender, based on the judgment of any court of competent jurisdiction or pursuant to a bona fide compromise or settlement of claims, demands, or actions, in respect to any damages to which the foregoing relates.
Compliance with all Laws. Referrer shall perform its obligations described herein in compliance with all applicable laws, rules, and regulations.
Force Majeure. Promethean will not be liable for delay or failure to send referral payments if the delay or failure is caused by circumstances that are not reasonably within Promethean’s control, including an act of God, strike or lockout or other labor dispute, act of the public enemy, war (declared or undeclared), blockade, revolution, civil commotion, lightning, fire, storm, flood, earthquake, explosion, governmental restraint, embargo, and the inability to obtain or delay in obtaining governmental approvals, permits, or licenses.
Governing Law & Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of New York without regard to any conflict of law principles to the contrary. The parties irrevocably submit to the jurisdiction of the state and federal courts located in New York County, New York with respect to any proceeding under this Agreement.
Attorney Fees. In any formal action or proceeding to enforce rights under this Agreement, Promethean will be entitled to recover costs and reasonable attorney(s’) fees.
Amendment. Promethean reserves the right to modify any of the terms and conditions contained in this Agreement, at any time and at Promethean’s sole discretion, by posting a change notice or a new agreement on the Promethean website. If any modification is unacceptable to Referrer, Referrer’s only recourse is to terminate participation in the Referral Program. Referrer’s continued participation in the Referral Program following Promethean’s posting of a change notice or new agreement will constitute binding acceptance of the change.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, void, or unenforceable, the remainder of this Agreement will remain in full force and effect and shall control.
Notices. Unless specifically addressed under a provision of this agreement, any legal notice required or permitted to be sent under this Agreement shall be delivered by email. Emails to Promethean should be sent to info@prometheanit.com. Emails to Referrer shall be sent to the email identified in the Referrer’s contact information provided to Promethean.
Survival . Any terms of this Agreement which by their nature extend beyond the day this Agreement ends remain in effect until fulfilled and apply to respective successors and assignees. Except as provided for in a related agreement, upon termination or expiration of this Agreement, all rights and licenses granted to each party hereunder shall cease. Referrer may not transfer its rights under this agreement to another party without written consent from Promethean.