Customer Referral Program OLG Rewards Terms & Conditions
Effective date December 30, 2013 (last updated December 30, 2013)
This Rewards customer referral program agreement between O’Neill Landscape Group (referred to in this agreement as OLG), aGeorgia Company (LLC) with its principal offices located at 254 Arnold Mill Rd. Woodstock GA 30188 and you, known as the Referrer.
WHEREAS, OLG is in the business of providing general landscape services.
WHEREAS, you desire to enter into a referral relationship under which Referrer shall refer potential customers to OLG in exchange for a referral fee (as defined below and provided herein).
NOW THEREFORE, 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:
1.1 “Referral” means a reasonably qualified customer for services, which is considered a closed and won opportunity and makes the required payment in full, for which Referrer is directly responsible for soliciting and referring to OLG. The referred customer must hire OLG within three (3) months of the Referral.
1.2 “Referrer” means any individual who acts as the referring party
1.3 “Existing Customer” means any customer to which OLG has provided Services prior to the applicable Referral Date of a Referral.
1.4 “Potential Customer in Negotiations” means any business that OLG is currently working with to become a customer by providing product demonstrations, service information, inspections, free estimates or negotiating a contract.
1.5 “Agreement” means everything covered by the terms and conditions that govern your participation in the OLG referral program.
2. Referral of Potential Customers by Referrer
During the term of this Agreement, Referrer shall undertake commercially reasonable best efforts to send Referrals to OLG. For each Referral, Referrer will either fill out an online form or call 317-577-7868, and provide contact name, company name (if applicable), phone number, and e-mail address for both Referrer and the referrals.
OLG may reject any Referral that references any Existing Customer or references any Potential Customer in Negotiations with OLG.
3.2 Payment of Referral Fees.
If a Referral enters into an agreement with OLG for OLG to provide its Services to such Referral and such Referral makes payment in full, as required by the contract, then Referrer shall be entitled to receive a one-time fee (“Referral Fee”) in the amount stated in Denominations of Referral Fees as a gift card, gift certificate, or e-gift card from Visa (or other similar gift card at the discretion of OLG). Eligibility for a Referral Fee will be dependent upon the reasonable determination of OLG that, in addition to referring the Referral, the Referrer had a relevant role in the consummation of the agreement with such Referral. Notwithstanding anything herein to the contrary, in no event shall OLG be obligated to pay a Referral Fee for any Referral involving an Existing Client. There is no limit to the amount of Referrals made by the Referrer.
3.3 Denominations of Referral Fees.
All Referral Fees will be in the amount of $25 per instance with no exception.
3.4 Resolution of Conflicts Regarding Referral Fees.
OLG shall not be liable for more than a single Referral Fee for each individual Referral. If any third party should make a claim for any Referral Fee or part thereof, then the Referral Fee earned for any closing hereunder shall be apportioned among the claimants for same as determined by OLG in its sole discretion. OLG shall make a reasonable effort to consult with all relevant parties regarding any apportionment. The final decision of OLG regarding the apportionment of any Referral Fee due and payable hereunder shall be final.
4. Confidential Information
4.1 Definition of Confidential Information.
The parties anticipate that OLG may disclose Confidential Information to Referrer. For purposes hereof, “Confidential Information” means business or technical information disclosed by either party to the other party, including, without limitation, information relating to a party’s product plans, contact information, customers, costs, products and services, pricing, finances, personnel, that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, the terms and conditions of this Agreement is the Confidential Information of both parties.
5. No Exclusivity
This Agreement shall not be construed to be a commitment by either party to work exclusively with the other party regarding referrals of potential new business or any other business activities.
6. Representations and Warranties
Each party represents and warrants that:
a. it has the necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to grant the rights herein granted;
b. it will conduct business in a manner that reflects favorably on the other party and its products and services;
c. it will make no false or misleading representations with respect to the other party and its products and services; and
d. it will make no representations, warranties or guarantees with respect to the specifications, features or capabilities of the other party’s products and services that are inconsistent with the other party’s Marketing Materials.
Subject to Section 11, Referrer will indemnify, defend and hold OLG and its partners, and their respective officers, directors, employees, consultants and agents harmless from and against all damages, liabilities, costs, charges and expenses, including reasonable attorneys’ fees, awarded in a final judgment against or paid in settlement by OLG, arising out of or resulting from any third party claim based on a breach or alleged breach by Referrer of any representation or warranty specified in Section 6.
Subject to Section 8, OLG will indemnify, defend and hold Referrer and its affiliates, and their respective, officers, directors, consultants and agents harmless from and against all damages, liabilities, costs, charges and expenses, including reasonable attorneys’ fees, awarded in a final judgment against or paid in settlement by Referrer arising out of or resulting from any third party claim relating to any breach or alleged breach by OLG of any representation or warranty specified in Section 6.
8. Indemnity Procedure
The party seeking indemnification and defense under Section 8, as the case may be (the “Indemnified Party”), will give prompt written notice of any claim to the other party (the “Indemnifying Party”). In addition, the Indemnified Party will allow the Indemnifying Party to direct the defense and settlement of any such claim, with counsel of the Indemnifying Party’s choosing, and will provide the Indemnifying Party, at the Indemnifying Party’s expense, with information and assistance that is reasonably necessary for the defense and settlement of the claim. The Indemnified Party reserves the right to retain counsel, at the Indemnified Party’s sole expense, to participate in the defense of any such claim. The Indemnifying Party may not settle any claim without the Indemnified Party’s prior written consent, if the settlement terms would adversely affect the Indemnified Party or its rights under this Agreement.
9. LIMITATION OF LIABILITY
OLG TOTAL CUMULATIVE LIABILITY FOR DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE REFERRAL FEES PAYABLE BY OLG HEREUNDER. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, OF ANY CHARACTER, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY CAUSING THE DAMAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE FULL EXTENT AS ABOVE INDICATED.
10. Term of Agreement; Survival
Either party may terminate this Agreement at any time and for any reason (or no reason) by providing notice to the other party orally or in writing. The obligations contained in these Sections shall survive the expiration or termination hereof.
11.1 Termination for Cause.
Either party may terminate this Agreement upon notice if the other party materially breaches this Agreement and fails to correct the breach within ten (10) days following notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days.
11.2 Governing Law
This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of Indiana, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Marion County, Indiana. You hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
11.5 Force Majeure
Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
11.6 Compliance with Laws
Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
11.7 Relationship between the Parties
Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
Neither party may assign this Agreement without prior written consent unless in connection with a merger, acquisition, or sale of all or substantially all of its assets, and provided that the surviving entity has agreed to be bound by this Agreement.
11.9 Entire Agreement
This Agreement together with the exhibits hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. Any modification or amendment of any provision of this Agreement will only be made by OLG.
11.10 Equitable Relief
You acknowledge that a breach by You of any confidentiality or proprietary rights provision of this Agreement may cause OLG irreparable damage, for which the award of damages would not be adequate compensation. Consequently, OLG may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
11.11 Independent Contractors
The relationship of OLG and Referrer shall be and shall at all times remain that of independent contractors and not that of employer and employee, franchisor and franchisee, joint ventures or partners. This Agreement does not establish either party as the other party’s agent or representative for any purpose. The party receiving the Referral Fee, per the agreement, will be responsible for any taxes or taxation requirements upon receipt of payment. Neither party shall have any authority of any kind to bind the other party in any respect whatsoever. Without limiting the generality of the preceding sentence, neither party is authorized to accept orders or to enter into contracts or any obligation in the other party’s name, or to transact any business on behalf of the other party.
This Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument.
OLG may give notice to Referrer by e-mail to Referrer’s e-mail address on record in OLG account information. Referrer may give notice to OLG by sending an e-mail to OLG@OLGservices.com. No e-mail notices will be confirmed by certified mail.