This Abundant Estate, LLC Referral Program Agreement (“Agreement”) is entered into by Abundant Estate, LLC (the “Company”) and the referring party executing this Agreement (“Participant”). This Agreement governs Participant’s participation in the Abundant Estate, LLC Referral Program described herein (the “Program”). You represent and warrant that: (i) you have full legal authority to enter into this Agreement; (ii) you have read and understand the Agreement, and (iii) you agree to the terms of this Agreement. If you do not have legal authority to enter into this Agreement or do not agree to these terms, please do not click to accept this Agreement below.
This Agreement is effective between Participant and the Company as of the date Participant electronically accepts this Agreement.
“Custom code” means the unique promo code or URL to be provided by the Company to Participant and which will correlate Eligible Referrals submitted by Participant to Participant’s Program account.
“Eligible Referral” means an eligible net new customer lead for the direct online purchase of the Services directly from the Company, excluding Ineligible Referrals.
“Services” means the a completed booking directly from a page within www.smokymountainslodge.com
“Incentives” means redeemable coupons, promotion codes, or other incentives for use by the Participant in promoting and marketing the Services under this Agreement.
“Ineligible Referrals” means Resellers, OTAs, Services customers of resellers, any other individuals or entities already in the Company’s systems.
“Participant” means a member of the Program who has a completed a stay at Smoky Mountains Lodge or has a confirmed upcoming booking at Smoky Mountains Lodge.
“Referee” is a new customer lead for Services submitted by Participant to the Company.
“Referral Fees” means the promo code to be furnished by the Company to Participant for Eligible Referrals that result in a Valid Transaction.
“Valid Transaction” is a completed sale or booking for Services using the unique referee Incentive originating through a page on www.smokymountainslodge.com in compliance with the requirements for furnishing of Referral Fees.
2. Program Overview. In compliance with this Agreement, Participant agrees to be a current email subscriber of the Company’s email communication and understands that Participant’s contact information will be securely stored with us. Once the Participant submits their request and email for a unique referral code, they can use the unique code the Company furnishes them to distribute to Referees. If a referee completes a booking on www.smokymountainslodge.com using the referral code, the Referee will save $50 and the Participant will receive a 2nd unique $50 off code for their own use in booking. Participant will not market the Services to any Ineligible Customers. The Company will provide Participant with a unique referral code or URL for the purpose of correlating any Eligible Referees resulting in a Valid Transaction under this Agreement. The Company may issue Incentives to Participant in accordance with the restrictions and guidelines in this Agreement. As applicable, and subject to the requirements herein, Participant may include on its website and in its marketing materials for the Services. A Valid Transaction must always be completed to qualify for Referral Fees.
3. Distribution of Custom URL and Incentives. Participant will use best efforts to distribute the Participant’s unique promo code, custom URL and Incentives only to Eligible Referees. All marketing materials (including without limitation the text of email distributions, if any) must be (i) strictly consistent with any Program instructions provided by the Company, (ii) compliant with the terms and conditions of this Agreement and all applicable marketing, privacy and data protection laws and governmental regulations. Any e-mail distribution must: (x) offer recipients the ability to opt-out of future Participant communications; and (y) contain the Company’s governing terms and conditions for any Incentives when offered. At the Company’s request, Participant will block distribution of Custom promo, URL and Incentives to parties as the Company designates in its sole discretion, consistent with applicable laws.
4. Compliance. In addition to the other legal requirements in this Agreement, Participant expressly agrees to comply with the following:
- 4.1. Anti-Bribery Laws and Reporting. Participant will comply with all applicable commercial and public anti-bribery laws (“Anti-Bribery Laws”), including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, which prohibit corrupt offers of anything of value, either directly or indirectly to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. “Government officials” include any government employee; candidate for public office; and employee of government-owned or government-controlled companies, public international organizations, and political parties. Furthermore, Participant will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. If Participant becomes aware of suspicious, illegal or fraudulent activity occurring in relation to this Agreement, Participant will report the suspicious or fraudulent activity to the Company within 24 hours of identifying the suspicious or fraudulent activity via [email protected]
- 4.2 Export Control Laws. Participant will comply with all applicable export and re-export control laws and regulations, including (i) the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, (ii) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (iii) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State.
- 4.3 Acceptable Use Policy. Participant will not send, post, transmit or otherwise use any of the Company provided content, including the the Company name or the Services, in connection with any materials, sites or otherwise that: (i) will generate or facilitate unsolicited bulk commercial emails; (ii) will, or otherwise encourage, the violation of the legal rights of others; (iii) is for an unlawful, invasive, infringing, defamatory, or fraudulent purpose; (iv) contains obscene or pornographic content.
- 4.4 Certification. Participant represents, warrants and certifies to the Company that: (i) it has legal authority to enter into these terms and participate in the Program; (ii) its employment contract (if applicable) does not restrict it from participating in the Program, and where Participant is also a representative, agent or an employee of a the Company reseller it has also obtained a valid consent from its employer to participate; (iii) each Referral submitted by Participant will be reasonably made in good faith as an Eligible Referral; and (iv) it will comply with all applicable laws and governmental regulations, including without limitation, as described in this Section 4 above.
5. Termination and Modification of Terms. The Company may at any time and in its sole discretion: (i) modify or update the terms of, including but not limited to, the Program, this Agreement, Incentives (and their governing terms and conditions) and will make such modified or updated terms available in writing, or (ii) revoke a Participant’s account, and/or terminate Participant’s participation in the Program in its entirety. If the Company provides Participant with an updated referral code, Custom URL, or Incentives (and applicable terms and conditions), Participant agrees will begin using, and will be subject to, such updated versions no later than 30 days after receiving them.
6. Brand Features. Each party will own all right, title and interest to trade names, trademarks, service marks, logos and domain names it secures from time to time (“Brand Feature(s)”). Subject to the terms and conditions of the Agreement (including without limitation the following sentence), the Company grants to Participant a nonexclusive and non-sublicensable license during the Term to display the Company’s Brand Features only to the extent Brand Features are provided by the Company for use with the Program and solely for the limited purpose of promoting the Services consistent with this Agreement. Additionally, all use of the Company Brand Features is at the Company’s sole discretion and subject to the Company’s then-current Brand Feature use guidelines.
Subject to the terms and conditions of the Agreement, Participant grants to the Company a nonexclusive and non-sublicensable license during the Term to display Participant’s Brand Features solely for the purpose of marketing the Program or as otherwise mutually agreed upon (email permitted).
7. Participant Incentive.
- 7.1 Referral Promo. The Company will furnish Participant with a one-time promo code for Participant’s use in their own booking for each Eligible Referee that results in a Valid Transaction, up to a maximum of 10 Valid Transactions, per calendar year. The Company reserves the right, in its sole discretion not to pay any Referral Fees to Participant where the Company determines Participant’s actions are not consistent with the intent of this Program.
- 7.2. Incentives. The Company may elect to provide Participant with Incentives to offer its Eligible Referrals from time to time. Use of any applicable Incentives will be subject to the governing terms and conditions as provided by the Company.
Participant is solely responsible for ensuring its account information is accurate and current. The Company will not be responsible for any payments not received due to Participant failing to provide accurate and complete account information for payment, or any other relevant or required information.
The Company reserves the right, in its sole discretion, to change the terms and conditions of the payment process to Participant.
8 Term; Termination. The Term will continue until terminated by either party as provided herein. Either party may terminate this Agreement immediately with or without cause upon written notice to the other party (email notice permitted). Upon any termination or expiration of this Agreement, all licenses and rights granted will terminate and each party will have no right to use the Brand Features of the other party. In the event of a termination, Participant will only receive Referral Fees that were earned in full for a Valid Transaction that occurred prior to the effective termination date. Termination notices to the Company must be sent to [email protected].
9. Confidentiality. Participant may not disclose the terms, conditions or existence of any non-public aspect of the Program to any third party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with law.
10. Disclaimers; Limitation of Liability. EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANT-ABILITY AND FITNESS FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROGRAM AND CUSTOM URL IS PROVIDED “AS IS” AND AT PARTICIPANT’S OPTION AND RISK AND THE COMPANY DOES NOT GUARANTEE ANY RESULTS. EXCEPT FOR (I) BREACHES OF SECTION 4 (COMPLIANCE); (ii) BREACHES OF SECTION 6 (BRAND FEATURES); AND (iii) SECTION 12 (INDEMNIFICATION), TO THE FULL EXTENT PERMITTED BY LAW REGARDLESS OF THE THEORY OR TYPE OF CLAIM: (A) NO PARTY MAY BE HELD LIABLE UNDER THIS AGREEMENT OR ARISING OUT OF PERFORMANCE OF THIS AGREEMENT FOR ANY DAMAGES OTHER THAN DIRECT DAMAGES, EVEN IF THE PARTY IS AWARE OR SHOULD KNOW THAT SUCH DAMAGES ARE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY AND (B) NO PARTY MAY BE HELD LIABLE FOR DAMAGES UNDER THIS AGREEMENT IN THE AGGREGATE OF MORE THAN THE AMOUNT PAID BY THE COMPANY TO PARTICIPANT UNDER THIS AGREEMENT IN THE 3 MONTHS BEFORE THE DATE OF THE ACTIVITY GIVING RISE TO THE FIRST CLAIM.
11. Indemnification. Participant will defend, indemnify and hold harmless the Company, its affiliates, directors, officers and employees against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising out of: (a) Participant’s participation in the Program; (b) Participant’s web site(s), Participant Brand Features and the Company’s use of any Participant content (provided that such use complies with the requirements of the Agreement); and (c) Participant’s breach of any representation or warranty in this Agreement.
12. Representations and Warranties. Participant warrants that (a) Participant will use all information provided by the Company (including without limitation the the Company Brand Features) in a manner that complies with applicable law; (b) Participant will clearly and conspicuously display the text of the applicable terms and conditions for Incentives provided to Customers in accordance with this Agreement; and (c) Participant will conduct all activities in furtherance of this Agreement in accordance with applicable law.
13. Governing Law and Arbitration.
14.1 Governing Law. ALL CLAIMS ARISING OUT OR RELATING TO THIS AGREEMENT OR ANY RELATED THE COMPANY’S PRODUCTS OR SERVICES (INCLUDING ANY DISPUTE REGARDING THE INTERPRETATION OR PERFORMANCE OF THE AGREEMENT) (“Dispute”) WILL BE GOVERNED BY THE LAWS OF THE STATE OF COLORADO, USA, EXCLUDING COLORADO’S CONFLICTS OF LAWS RULES.
14.2 Arbitration and Disputes. The parties will try in good faith to settle any Dispute within 30 days after the Dispute arises. If the Dispute is not resolved within 30 days:
- North America. any Dispute arising in the Territory within the limits of the geographic regions of North America (defined as the United States and Canada), arising out or relating to the subject matter of this agreement, will be litigated exclusively in the Federal or State Courts of Boulder County, Colorado, USA, and the parties consent to personal jurisdiction in those courts;
14. Miscellaneous. All notices, unless otherwise stated herein, must be in writing and addressed to the attention of the other party’s Legal Department and primary point of contact. Notice will be deemed given when delivered (a) when verified by written receipt if sent by personal courier, overnight courier or mail or (b) when verified by automated receipt of electronic logs if sent by facsimile or email. Participant will not assign or otherwise transfer its rights or delegate its obligations under the Agreement, in whole or in part, and any attempt to do so will be null and void. The Agreement is not intended to benefit, nor shall it be deemed to give rise to, any rights in any third party. The parties are independent contractors and the Agreement does not create any agency, partnership, or joint venture. No party is liable for inadequate performance to the extent caused by a condition that was beyond its reasonable control. Failure to enforce any provision will not constitute a waiver. If any provision is found unenforceable, the balance of the provisions will remain in full force and effect. In the event of any termination or expiration of the Agreement, Sections 5, 9, 10, 11 and 12 shall survive. This Agreement is the parties’ entire agreement relating to its subject and supersedes any prior or contemporaneous agreements on that subject. Any amendments must be in writing and executed by both parties (electronic form acceptable).