Postscript Referral Program Agreement
Updated: January 31, 2024
This Postscript Referral Program Agreement (the “Agreement”) is a binding and enforceable agreement between Stodge, Inc. (“Postscript”) and you, the business entering into this Agreement (‘you” or “Partner”). By submitting an application to the Referral Program, completing the registration process, or otherwise participating in the Referral Program, you accept and agree to be bound by this Agreement.
Postscript may update this Agreement at any time, in its sole discretion. Postscript will notify you of changes to this Agreement by posting the changes to the Postscript Website, by email, or through other communications. If you continue to participate in the Referral Program after Postscript posts an updated Agreement, you agree to be bound by that updated Agreement.
SECTION 11 “DISPUTE RESOLUTION” CONTAINS A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS.
“Affiliate Link” means the dedicated URL provided by Postscript to Partner for the purpose of referring New Postscript Customers or New Fondue Customers, which Postscript may update from time to time with notice to Partner.
“Applicable Laws” means all applicable laws, rules, and regulations, including state laws governing unfair or deceptive acts or practices, the U.S Foreign Corrupt Practices Act of 1977 as amended and any other applicable anti-bribery or anti-corruption laws, laws and regulations relating to U.S. sanctions, embargoes, and export controls, and all applicable laws, rules, and regulations relating to data privacy and consumer protection.
“Confidential Information” means all confidential information disclosed by a party to the other party, whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the circumstances. Confidential Information includes business and marketing plans, technology and technical information, product plans and designs, pricing information, and business processes.
“Fondue Rebate Program” means the Rebate Program as defined in the Merchant Terms of Service located at https://www.getfondue.com/merchant-terms.
“Fondue Referral” means an eligible New Fondue Customer that meets all requirements set forth in Section 3.6 (Fondue Referral), and is not otherwise ineligible as described in this Agreement.
“Intellectual Property Rights” means, on a worldwide basis, any and all: (a) rights associated with works of authorship, including copyrights, moral rights, database rights and mask works; (b) trademarks; (c) trade secret rights; (d) patents, designs, algorithms and other industrial property rights; (e) other intellectual and industrial property rights of every kind and nature, however designated, whether arising by operation of law, contract, license or otherwise; and (f) registrations, initial applications, renewals, extensions, continuations, divisions or reissues of the foregoing.
“Lead Form” means the lead form available through the Referral Portal.
“New Fondue Customer” means a new prospective customer that meets all requirements set forth in Section 3.4 (New Fondue Customer) or elsewhere in this Agreement.
“New Postscript Customer” means a new prospective customer that meets all requirements set forth in Section 3.3 (New Postscript Customer) or elsewhere in this Agreement.
“Payment Provider” means a third-party provider that administers payments (currently GrowSumo a.k.a. PartnerStack).
“Postscript Marks” means Postscript’s name, logo, and other identifiers in the form provided to Partner by Postscript for use in connection with this Agreement.
“Postscript Referral” means an eligible New Postscript Customer that meets all requirements set forth in Section 3.5 (Postscript Referral), and is not otherwise ineligible as described in this Agreement.
“Postscript Services” means the Platform Services as defined in the Postscript Terms of Service located at https://postscript.io/terms-of-service.
“Postscript Website” means the website located at https://www.postscript.io/.
“Referral Fees” means the fees payable for a Postscript Referral or Fondue Referral as further defined in Section 4.1 (Postscript Referral Fees) and Section 4.2 (Fondue Referral Fees).
“Referral Portal” means the website located at https://partnerstack.com/.
“Referral Program” means the program administered by Postscript for referrals of New Postscript Customers and New Fondue Customers, as further defined in Section 3 (Referral Program).
“Taxes” means any taxes, levies, duties, or similar governmental assessments of any nature (including, for example, value-added, sales, use, or withholding taxes) assessable by any applicable taxing authorities.
Under this Agreement, the words “include” and “including” mean “including but not limited to.”
2. Eligibility; Referral Portal
2.1 Eligibility. To participate in the Referral Program, Partner must be capable of forming a binding contract with Postscript, and not otherwise barred from participating in the Referral Program under Applicable Laws. If you do not meet the requirements set forth in this Section, you may not participate in the Referral Program. If you participate in the Referral Program on behalf of an entity, you represent and warrant that you have the authority to bind that entity to this Agreement, and that by accepting this Agreement, you are doing so on behalf of that entity. Postscript reserves the right to approve or reject requests to participate in the Referral Program at Postscript’s sole discretion.
3. Referral Program
3.1. Appointment. Postscript hereby appoints Partner, and Partner hereby accepts such appointment, as Postscript’s non-exclusive referral partner. Partner’s sole authority under this Agreement will be to refer New Postscript Customers and New Fondue Customers to Postscript as set forth in this Section. Partner acknowledges and agrees that Postscript will directly enter into agreements with New Postscript Customers and New Fondue Customers for the provision of Postscript Services and the Fondue Rebate Program, and that Partner has no authority to negotiate any contract for or on behalf of Postscript, or bind Postscript to any contract.
3.2 Restrictions. Partner will not (a) sell, resell, distribute, license, or sublicense the Postscript Services or Fondue Rebate Program directly to any customer; (b) make any statements relating to the Postscript Services or Fondue Rebate Program that are false, misleading or inconsistent with materials (including price lists) published or otherwise supplied by Postscript from time to time; or (c) make any commitments, warranties or guarantees with respect to the Postscript Services or Fondue Rebate Program (including pricing) or Partner’s relationship with Postscript.
3.3 New Postscript Customer. A New Postscript Customer is a Shopify merchant that meets all of the following conditions: (a) the merchant is not currently a Postscript customer, does not currently use Postscript Services, and has not used the Postscript Services within the preceding three (3) months; (b) has not previously been referred to Postscript by Partner or any other third party; and (c) the merchant is not owned or operated, directly or indirectly, by Partner, unless otherwise approved in writing by Postscript at its sole discretion.
3.4 New Fondue Customer. A New Fondue Customer is a Shopify merchant that meets all of the following conditions: (a) the merchant is not currently a Fondue customer, does not currently use the Fondue Rebate Program, and has not used the Fondue Rebate Program within the preceding three (3) months; (b) has not previously been referred to Fondue by Partner or any other third party; and (c) the merchant is not owned or operated, directly or indirectly, by Partner, unless otherwise approved in writing by Postscript at its sole discretion.
3.5 Postscript Referral. A Postscript Referral occurs when: (a) a New Postscript Customer signs up for the Postscript Services using Partner’s Affiliate Link, and promptly converts to a paid Postscript account; or (b) Partner submits a Lead Form through the Referral Portal, and following submission, the relevant New Postscript Customer signs up for the Postscript Services and promptly converts to a paid Postscript account. Postscript reserves sole discretion to determine whether a merchant does not meet the requirements set forth in this Section and is ineligible to qualify as a New Postscript Customer or Postscript Referral.
3.6 Fondue Referral. A Fondue Referral occurs when: (a) a New Fondue Customer signs up for the Fondue Rebate Program using Partner’s Affiliate Link, and completes an A/B test for the Fondue Rebate Program in accordance with Postscript’s reasonable guidelines; or (b) Partner submits a Lead Form through the Referral Portal, and following submission, the relevant New Fondue Customer signs up for the Fondue Rebate Program and completes an A/B test for the Fondue Rebate Program in accordance with Postscript’s reasonable guidelines. Postscript reserves sole discretion to determine whether a merchant does not meet the requirements set forth in this Section and is ineligible to qualify as a New Fondue Customer or Fondue Referral.
3.7 Customer Introduction and Feedback. At Postscript’s reasonable request, Partner will assist Postscript in making contact with the Postscript Referral or Fondue Referral by arranging an introduction through email, call, or an in person meeting. If Partner manages or has an ongoing relationship with a Postscript Referral or Fondue Referral, Partner will promptly communicate any feedback or concerns of the relevant customer to Postscript, and will facilitate a call or meeting between the customer and Postscript to discuss.
3.8 Competing Services. While this Agreement is in effect, Partner will notify Postscript of any promotion or marketing of a product or service that directly competes with the Postscript Services or the Fondue Rebate Program. For clarity, Partner is not restricted from engaging in the foregoing activities.
4. Referral Fees and Payment Terms
4.1 Postscript Referral Fees. Postscript will pay a monthly Referral Fee for each Postscript Referral for the first twelve (12) consecutive months following the New Postscript Customer’s conversion to a paid Postscript account. The Referral Fee is ten percent (10%) of the fees actually received by Postscript for Platform Services (excluding carrier fees) and certain qualifying professional services under a related service order, as determined by Postscript in its sole discretion. Postscript’s obligation to pay Referral Fees will only apply while the New Postscript Customer’s subscription for Platform Services is in effect. For clarity, if a New Postscript Customer terminates its subscription with Postscript, Postscript will have no further obligation to pay Referral Fees, even if the New Postscript Customer later purchases a new subscription.
4.2 Fondue Referral Fees. Postscript will pay a one-time Referral Fee for each Fondue Referral, based on the fee schedule provided by Postscript via email or via Partnerstack. Postscript may update or modify the fee schedule for Fondue Referrals at any time.
4.3 Payments. Postscript will pay Referral Fees: (a) for Postscript Referrals, within thirty (30) days after the New Postscript Customer’s monthly message fees are received by Postscript, and (b) for Fondue Referrals, within thirty (30) days following completion of the relevant A/B test by the New Fondue Customer.
4.4 Payment Provider. Postscript may use a Payment Provider to disburse payments for the Referral Program. Partner must keep all account information updated and complete within the Referral Portal to receive Referral Fees. Referral Fees returned due to incorrect account information or other incorrect information will not be returned. Partner agrees that payment information and history provided through the Referral Portal will govern all payments made in connection with the Referral Program and this Agreement.
4.5 Taxes. Partner is solely responsible for remitting all Taxes in connection with the Referral Fees.
4.6 Payment Disputes. Partner must provide Postscript with written notice of any dispute regarding a Referral Fee payment within thirty (30) days of release of payment, and provide reasonable details to review the dispute. If Partner fails to notify Postscript of a billing issue or dispute as required under this Section, Partner waives its right to such dispute. Any payment dispute is further governed by Section 11 (Dispute Resolution).
5. Intellectual Property Rights; Marketing
5.1 Limited License to Postscript Marks. Subject to this Agreement, and subject to Partner’s completion of required Partner training, Postscript grants you a limited, revocable, non-sublicensable, non-transferable, non-exclusive license to use Postscript Marks on Partner’s website and in promotional communications solely for the purpose of engaging New Postscript Customers and New Fondue Customers in connection with the Referral Program, and in the form provided by Postscript and in accordance with all brand guidelines communicated by Postscript. If Postscript objects to a use of Postscript Marks, Partner will immediately remove or correct the use at Postscript’s direction. This license will immediately terminate upon termination of this Agreement. Any use of Postscript Marks will inure to Postscript’s benefit.
5.2 Marketing and Publicity Rights. Postscript may use Partner’s name and logo to identify Partner as a Postscript referral partner in Postscript marketing and promotional materials, including on the Postscript Website and in case studies. If Partner objects to a particular use of Partner’s name or branding and notifies Postscript in writing, Postscript will use commercially reasonable efforts to accommodate Partner’s requests to change or remove the relevant use. Any use of Partner’s name and marks will inure to Partner’s benefit.
5.3 Reservation of Rights. Postscript owns all right, title, and interest, including all Intellectual Property Rights, in and to the Postscript Marks, Platform Services, and all other Postscript products, services, and marks and branding. Except as expressly set forth in this Section, no rights are granted in or to either party’s Intellectual Property Rights.
5.4 Postscript Marketing Communications. By registering and creating an account through the Referral Portal, Customer acknowledges and agrees that Postscript may use contact information associated with your account for marketing and promotional communications.
6. Confidential Information
6.1 Protection of Confidential Information. Each party agrees to maintain Confidential Information in confidence and not to disclose it or any portion of it, except to its employees, consultants, and affiliates who have a need to know such Confidential Information and are bound by obligations of confidentiality similar to this Agreement. Each party will use the same care and discretion to avoid disclosure, publication, or dissemination of the Confidential Information as it uses with its own confidential or proprietary information, but in no event less than reasonable care. Each party may only use the Confidential Information of the other party to perform its obligations and exercise its rights under this Agreement. Neither party will have liability to the other with regard to any Confidential Information that is required to be disclosed by law or court order, provided that the party that received the Confidential Information (“receiving party”) will provide reasonable advance notice (to the extent legally permitted) to enable the party that provided the Confidential Information (“disclosing party”) to seek a protective order or otherwise prevent such disclosure.
6.2 Exclusions. Notwithstanding anything else, Confidential Information will not include any information that the receiving party can demonstrate: (a) at the time of disclosure is publicly available or becomes publicly available through no act or omission of the receiving party; (b) has been disclosed to the receiving party by a third party who is not under, and to whom the receiving party does not owe, an obligation of confidentiality with respect thereto; or (c) has been independently acquired or developed by the receiving party without use of the Confidential Information of the disclosing party.
7. Representations and Warranties.
7.1 Mutual Warranties. Each party represents and warrants that: (a) it has the right, power, and authority to enter into this Agreement; and (b) entering this Agreement and the performance of the obligations and duties hereunder does not and will not violate any agreement to which it is a party or is otherwise bound.
7.2 Partner Warranties. Partner further represents and warrants that: (a) Partner will comply with all Applicable Laws; (b) Partner will conduct itself in an ethical manner and refer only bona fide New Postscript Customers and New Fondue Customers to Postscript; (c) Partner will not infringe or otherwise violate any third-party right; and (d) Partner will not provide any representations or warranties to any New Postscript Customers, New Fondue Customers, or any other third party with respect to the Postscript Services.
8. Indemnification. To the extent permitted by Applicable Law, Partner will indemnify, hold harmless, and defend at Partner’s expense, Postscript and any of its officers, directors, employees, contractors, agents, and affiliates, from any and all third-party claims, actions, proceedings, and suits brought against any of the foregoing indemnified parties, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including reasonable attorneys' fees and other litigation expenses), or other losses incurred by the indemnified parties, arising out of or relating to: (a) Partner’s breach of this Agreement or the representations and warranties set forth in Section 7 (Representations and Warranties); and (b) Partner’s violation of Applicable Laws or any third-party Intellectual Property Rights in connection with the Referral Program. Partner will not compromise or settle any indemnified claim in any manner, nor make any admission of liability, without Postscript’s prior written consent, which Postscript may provide in its sole discretion. Postscript reserves the right, at its own expense, to participate in the defense and control of any matter subject to indemnification by Partner; provided, however, that if Postscript reasonably determines that Partner is unwilling or unable to defend Postscript or another indemnified party’s interests, then Postscript may assume the defense against any claims at Partner’s sole expense.
9. Disclaimer of Warranties; Limitation of Liability.
THE TERMS OF THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW:
9.1 DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7 (REPRESENTATIONS AND WARRANTIES), THE REFERRAL PROGRAM IS PROVIDED “AS IS”, WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. POSTSCRIPT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING COMPENSATION OR ANY OTHER BENEFITS THAT PARTNER WILL RECEIVE.
9.2 LIMITATION OF LIABILITY. POSTSCRIPT WILL HAVE NO LIABILITY FOR PARTNER’S LOST REVENUES OR PROFITS, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR LOSS OF DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES RESULTING FROM PARTNER’S PARTICIPATION IN THE REFERRAL PROGRAM, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, EVEN IF POSTSCRIPT HAS BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A LIMITED REMEDY SET FORTH THESE PLATFORM TERMS IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. POSTSCRIPT’S TOTAL CUMULATIVE LIABILITY TO PARTNER FOR ALL CLAIMS RELATING TO THE REFERRAL PROGRAM OR THIS AGREEMENT WILL NOT EXCEED THE TOTAL REFERRAL FEES PAID TO PARTNER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INITIAL EVENT GIVING RISE TO LIABILITY HEREUNDER. POSTSCRIPT WILL HAVE NO LIABILITY FOR THE ACTS OR OMISSIONS OF THE PAYMENT PROVIDER OR THE PAYMENT PROVIDER’S SERVICES.
10. Term; Termination
10.1 Term. This Agreement is effective as of the date that Partner joins the Referral Program, and will continue until otherwise terminated under this Section.
10.2 Termination for Convenience. This Agreement may be terminated at any time by either party upon thirty (30) days written notice to the other party.
10.3 Termination for Breach. This Agreement may be terminated by Postscript immediately upon notice if Partner breaches any provision of this Agreement.
10.4 Consequences of Termination. Upon termination of this Agreement, Partner will immediately: (a) refrain from representing itself as referral partner of Postscript; (b) cease use of Postscript Marks; and (c) return or destroy all Confidential Information of Postscript in its possession or control. If Postscript terminates this Agreement under Section 10.3 (Termination for Breach), Postscript will have no payment obligations pursuant to Section 4 (Referral Fees and Payment Terms) of the Agreement following the termination effective date. If this Agreement is terminated for any other reason, Partner is only entitled to Referral Fees for New Postscript Customers which it has referred to Postscript through a Postscript Referral sent prior to the effective date of termination of the Agreement.
10.5 Survival. This Section and any Sections which by their nature are intended to survive, will survive termination, including: 3 (Referral Program), 4 (Referral Fees and Payment Terms), 5.2 (Marketing and Publicity Rights), 5.3 (Reservation of Rights), 6 (Confidential Information), 7 (Representations and Warranties), 8 (Indemnification), 9 (Disclaimer of Warranties; Limitation of Liability), 11 (Dispute Resolution), and 12 (General).
11. Dispute Resolution
11.1 Mandatory Arbitration, Limits on Arbitrator’s Authority, and Jurisdiction.
Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Phoenix, Arizona before one arbitrator. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules, including Rules 16.1 and 16.2 of those Rules. Unless otherwise agreed to by the parties, the arbitrator shall be a retired judge with experience in the resolution of commercial disputes. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
In any arbitration arising out of or related to this Agreement, the arbitrator(s) are not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to this Agreement, the arbitrator(s) may not award any incidental, indirect or consequential damages, including damages for lost profits.
The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the Hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an Award or its enforcement, or unless otherwise required by law or judicial decision.
11.2 Governing Law. This Agreement and the rights of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Delaware, exclusive of conflict or choice of law rules. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the provision in the preceding paragraph with respect to applicable substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16).
11.3 No Class Action. Arbitration may only be conducted on an individual, not a class wide, basis. No arbitration proceeding between the parties may be consolidated with any
other arbitration proceeding involving Company and any other person or entity. Each party will file and prosecute arbitration proceedings separately and individually in the name of the respective parties, and not in any representative capacity. Each party hereby irrevocably waives and agrees not to assert any claim inconsistent with this Section. BY AGREEING TO THIS AGREEMENT, EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT (i) TO A COURT TRIAL OR (ii) TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT, ARBITRATION OR OTHER PROCEEDING FILED AGAINST COMPANY AND/OR RELATED THIRD PARTIES, EVEN IF ARBITRATION IS NOT REQUIRED UNDER THIS AGREEMENT.
12.1 Entire Agreement. This Agreement represents the entire agreement between Partner and Postscript regarding Partner’s participation in the Referral Program, and supersedes and replaces any and all prior written or oral understandings or agreements between Partner and Postscript regarding the Referral Program.
12.2 Notice. Any notice required or permitted to be made under these Referral Program Terms will be in English and in writing. Notice will be deemed to have been fully given and received when sent via email and: (a) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (b) one business day after deposit with a commercial overnight carrier, with written verification of such receipt; or (c) when email notice is expressly permitted in a section of these Referral Program Terms, when delivered. All notices to Partner may be made to the mailing or email address associated with Partner’s Payment Provider account. Postscript may also provide notices or messages about the Referral Program or this Agreement by posting to the Postscript Website. All notices to Postscript will be made to: Stodge Inc. d/b/a Postscript, ATTN: Legal Department, Stodge Inc. d/b/a Postscript, ATTN: Legal Department, 3370 N Hayden Road, Suite 123-251, Scottsdale AZ 85251, with a copy via email to firstname.lastname@example.org.
12.3 Assignment. Partner may not assign or transfer any of Partner’s rights or obligations under this Agreement without Postscript’s prior written consent. Any attempt by Partner to assign or transfer this Agreement without such consent will be null and void. Postscript may freely assign or transfer any of its rights or obligations under this Agreement without restriction. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.
12.4 Severability. If any term or condition of this Agreement is declared illegal or otherwise unenforceable, it will be severed from the remainder of this Agreement without affecting the legality or enforceability of the remaining portions.
12.5 Waiver. Postscript’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Postscript. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
12.6 Independent Contractors. The relationship between Partner and Postscript is that of independent contractors. Neither Partner nor Postscript will be deemed an agent, partner, joint venturer, agent, employee, or legal representative of the other party for any purpose. Partner has no authority, and will not hold itself out as having authority, to bind Postscript or make any agreements or representations on Postscript’s behalf.