BLOOMWELL! BUSINESS SERVICES REFERRAL AGREEMENT

THIS SERVICE REFERRAL AGREEMENT (the "Agreement") is made and entered

into this day, to be {dateOf} (the “Effective Date”) as of upon electronically signing, by and between:

BloomWell, LLC also ("BloomWell" or “Firm” or “Company” or “We” or “Us”), whose primary business office is located at 60 Commerce Street Ste. 1060 Montgomery, AL. 36104 and {yourName} and your company {nameOf}, also referred to as (“Referral Representative” or “You” or “Your” or “Client”) with its principal office located at the address listed on this form.

BACKGROUND: 

WHEREAS, BloomWell, through its subsidiaries and affiliates, provides various commercial business services to business customers as more particularly described at http://www.mybloomwell.com (the “Service(s)”); and

WHEREAS, the parties desire for Referral Representative to refer prospective business customers of the Services (“Prospects”) within the BloomWell territory, described as BloomWell’s serviceable areas (the “Territory”), to BloomWell.

AGREEMENT:

NOW, THEREFORE, based upon the mutual benefits and agreements herein contained and intending to be legally bound hereby, the parties agree as follows:

1. Appointment. BloomWell hereby appoints a Referral Representative on a non-exclusive basis to refer Prospects located in the Territory to BloomWell in accordance with the terms and conditions herein. BloomWell reserves the right to market and sell the Services directly on its own behalf and/or through other agents, inside and outside the Territory. BloomWell reserves the right to change eligible Services at any time upon written notice to the Referral Representative.

2. Independent Contractor. The Referral Representative’s appointment hereunder is as an independent contractor and not a partner or employee of BloomWell. This limited appointment shall not create a joint venture, franchise, partnership, or agency relationship at law. Referral Representative hereby waives the benefit of any state, local, or federal laws or regulations dealing with the establishment and regulation of franchises.

3. Relationship of Parties. Each party acknowledges that it has separate responsibility for all applicable federal, state, and local taxes for itself and any of its employees, and each party agrees to indemnify and hold the other harmless from any claim or liability, therefore. Each party understands and agrees that its respective employees shall not be entitled to participate in health or disability insurance, retirement, or pension benefits, if any, to which employees of the other party may be entitled. Neither party is authorized to make any promise, warranty, or representation on the other party's behalf with respect to the Services or to any other matter except as expressly authorized in writing by the other party.

4. Responsibilities of Referral Representative.

   1. Referral Representative shall use its best efforts to promote and refer the Services. In referring Prospects hereunder, the Referral Representative shall submit to BloomWell its referral form, found at http://www.mybloomwell.com/referralpartner-web-portal (“Referral Form”). BloomWell may revise the Referral Form and the referral process at any time. Under no circumstances shall the Referral Representative be entitled to receive commissions for any referral that is not made via a Referral Form (or such other referral process as BloomWell may designate in writing). The referral Representative agrees that it shall only submit Referral Forms based upon a Service request made from a Prospect to the Referral Representative.
   2. Referral Representative shall have no right or obligation to bill or collect any fees or charges for the Services from BloomWell customers or prospects.
      Referral Representative agrees that it shall not conduct any advertising or marketing campaigns for the Services, including, but not limited to, telemarketing, e-mail, radio, television, or print advertising.
   3. Referral Representative understands and agrees that BloomWell will set the terms, conditions, and prices for the Services and that Referral Representative shall not imply or represent anything to the contrary to any person or entity. Referral Representative shall not make any representations or warranties or use any materials, or provide any information regarding the Services that have not been provided by or expressly approved in writing by BloomWell.
   4. The Referral Representative shall comply with all federal, state, county, and local laws, rules, and regulations and any additional requirements as directed by BloomWell in writing. The Referral Representative shall, and shall cause its employees, subcontractors, and agents to adhere to the highest standards of honesty, integrity, fair dealing, and ethical conduct in all dealings with BloomWell customers, Prospects, and the public.
   5. The Referral Representative shall at all times conduct its operations and manage its personnel so that its actions or the actions of its subcontractors, agents, or employees will not negatively impact BloomWell or its public relations with the community.
5. Responsibilities of BloomWell.
   1. BloomWell will determine in its sole discretion whether a Prospect identified on a Referral Form is in a serviceable area and whether such referred Prospect meets all of BloomWell’s service and creditworthiness criteria. Commissions will be paid for successful referrals in accordance with Section 6 and Schedule 1.
   2. A Prospect identified on a Referral Form who has been previously referred to BloomWell by a person other than the Referral Representative during the ninety (90) day period immediately preceding the referral shall not qualify for a Commission. Further, no Commission shall be payable in connection with any referred Prospect who has terminated Service at the same address twice or more.
   3. BloomWell will be solely responsible for providing business bookkeeping services including any installation and activation of the Services to potential Prospects, billing, technical support, customer service, and termination of Services.
6. Commissions; Reporting.
   1. During the term of this Agreement and subject to the terms and conditions herein, BloomWell shall pay to Referral Representative commissions (“Commissions”) in accordance with the terms and conditions specified in Schedule 1. Referral Representative acknowledges and agrees that BloomWell may revise all Schedule 1 rates, terms, and conditions upon prior written notice to Referral Representative. The Commissions shall be the full and total compensation due to Referral Representative under this Agreement.
   2. Commissions will only be paid upon the installation of a BloomWell business Service(s) as particularly identified in Schedule 1 (unless BloomWell specifically designates other qualified service plans and corresponding commissions through a written revision of Schedule 1) to a Prospect location (“Location”) within the Territory, resulting directly and solely from Referral Representative’s submission of a Referral Form and otherwise following all requirements and reporting procedures specified in this Agreement and Schedule 1.
   3. Referral Representative agrees to provide written notification of all disputes it may have regarding unpaid Commissions (and, as the case may be, chargebacks, as defined in Schedule 1) within thirty (30) days of the date such Commission is earned or claimed to be earned (or the date of the chargeback) and any dispute for which Referral Representative does not provide such notification shall be deemed waived. A reasonable delay in paying Commissions disputed in good faith shall not constitute a breach of this Agreement.
7. Trademarks and Service Marks. Except as expressly set forth herein, Referral Representative shall not be deemed by this Agreement or any provision hereof to acquire any right, title, or interest in or to the use of the name “BloomWell”, “BloomWell Innovative Group”, “BloomWell! Innovative Group, “BloomWell!”, Bookkeeping, and Virtual Offices,” “BloomWell! Business”, or any other BloomWell service marks or trade names, or in or to any trademark or service mark now or hereafter owned by or authorized to BloomWell or any affiliate of BloomWell (the “BloomWell Marks"). Referral Representative shall not use the BloomWell Marks in its business, trade, or corporate name without the express written consent of BloomWell. The provisions of this Section shall survive the expiration or termination of this Agreement.
8. Confidentiality.

   1. Confidential Information shall mean all business, customer, and technical information of a party that is non-public, confidential, or proprietary. Confidential Information may be written, oral, expressed in electronic media, or otherwise disclosed and may be tangible or intangible. Each party to this Agreement will hold in confidence and not disclose to others any Confidential Information of the other party without the prior written consent of a duly authorized representative of the disclosing party. Confidential Information disclosed under this Agreement will be used only by the receiving party to perform its obligations hereunder. The parties agree that during and after the term of this Agreement, neither party receiving Confidential Information hereunder (“Receiving Party”) nor any person, firm, corporation, or other entity affiliated with, owned in whole or in part by, employed by or otherwise connected with the Receiving Party, shall directly or indirectly, without the express written consent of the Party disclosing Confidential Information (“Disclosing Party”), divulge, use, sell, exchange, furnish, give away, or transfer in any way any Confidential Information (as hereinafter defined) of the Disclosing Party. The provisions of this Section shall survive the expiration or termination of this Agreement.

   2. The obligations of confidentiality contained in this Section shall not apply to any information that: (a) was already known to the Receiving Party, other than under any obligation of confidentiality, at the time of disclosure by the other party; (b) was or generally becomes available to the public or otherwise part of the public domain other than through any act or omission of the Receiving Party in breach of this Agreement; (c) was disclosed to the Receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; (d) is independently developed by the Receiving Party; or (e) is required to be disclosed under the operation of law or governmental process. In the event either party is required to disclose the other’s Confidential Information under the operation of law or government process, such party shall provide the Disclosing Party with reasonable advance notice before such disclosure.

9. Personally Identifiable Information. Notwithstanding anything in this Agreement to the contrary, Referral Representative hereby acknowledges that information that it obtains about Prospects may include personally identifiable information (“PII”) and/or Customer Proprietary Network Information (“CPNI”), which information is subject to federal and state privacy laws, including the subscriber privacy protections outlined in 47 U.S.C. Section 551 and 47 U.S.C. §222(h)(1)(and the regulations promulgated thereunder, including 47 C.F.R. §§ 64.2001-64.2011) To the extent that BloomWell discloses any such PII or CPNI to Referral Representative, it does so in recognition of the services being provided by Referral Representative hereunder and in furtherance of BloomWell’s legitimate business activities related to such services. Referral Representative hereby agrees that it shall use such information solely for the purposes of this Agreement and restrict disclosure of PII and/or CPNI to those employees with a need-to-know basis and shall not further disclose such information to any third party. Referral Representative shall not use PII and/or CPNI of any Prospect for any other purposes, including without limitation, to market Referral Representative’s products and services unless first approved in writing by such Prospect. Referral Representative hereby acknowledges that the breach by the Referral Representative of any of its obligations under this Section cannot be reasonably or adequately compensated in damages in any action at law and that a breach of this provision by the Referral Representative will cause BloomWell irreparable harm. Referral Representative agrees that in case of a breach or threatened breach of this provision, BloomWell shall be entitled to injunctive and other equitable relief. The provisions of this Section shall survive the expiration or termination of this Agreement.

10. Interference With Contract. Referral Representative, its affiliates and subsidiaries, and their respective employees and agents hereby agree that they shall not intentionally induce, influence, or suggest that any Prospect purchase, contract for, or switch to any non-BloomWell service which would replace Service while such Customer is under contract with BloomWell. This requirement shall exist for the term of the Agreement plus one (1) year. In no event shall the Referral Representative use the Confidential Information of BloomWell at any time during or after the term hereof for any of the aforementioned prohibited activities. BloomWell shall have the right to enforce the terms of this Agreement by obtaining an injunction or specific performance from any court of competent jurisdiction. The remedies set forth herein are cumulative and are in addition to, and not in limitation of, other remedies available at law or in equity. None of the remedies specified in this Agreement for any default or breach of this Agreement shall be exclusive. The provisions and remedies of this Section shall survive the expiration or termination of this Agreement.

11. Term, Termination, Effect of Termination.

    1. This Agreement shall be effective as of the Effective Date and, unless terminated sooner in accordance with its terms, shall continue for a period of twelve (12) months (“Initial Term”). Thereafter, this Agreement shall continue on a month-to-month basis unless and until either party provides the other Party with written notice of its intent not to renew at least thirty (30) days prior to the requested termination date.

    2. Either party may, at its election, terminate this Agreement immediately if an order by any court or governmental authority with proper jurisdiction deems the activities of either party to be in conflict with applicable law, rule, or regulation or if BloomWell loses any authorization, franchise or permit necessary to provide the Services. Either party may, at its election, terminate this Agreement if a material breach by the other party occurs, and such material breach continues uncured for a period of thirty (30) days after written notice from the non-breaching party.

    3. Notwithstanding anything to the contrary herein, either party may, at any time with or without cause or for convenience, terminate this Agreement by providing at least thirty (30) days prior written notice of termination to the other party.

12. Indemnification. Each party shall indemnify, defend, and hold the other party and its parents, affiliates, and subsidiaries, and its and their directors, officers, employees, agents, and/or assignees harmless against any liability from any claims, actions, causes of actions or demands arising out of (i) the conduct of the indemnifying party’s business, including without limitation, with respect to any disputes between customer(s); and (ii) the indemnifying party’s breach or violation of any representation, warranty, covenant or any other terms of this Agreement.

13. Limitation of Liability. EXCEPT WITH RESPECT TO INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR OTHER SPECIAL DAMAGES TO THE OTHER PARTY INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUES OR GOODWILL, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR OTHERWISE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.

14. Representations and Warranties. Both parties represent and warrant that (i) the execution, delivery, and/or performance of this Agreement will not knowingly conflict with or result in any breach of any provision of the charter, by-laws, or other governing instruments of the party or any material agreement, contract or legally binding commitment or arrangement to which either party is a party; (ii) to its knowledge, each party is not subject to any limitation or restriction that would prohibit, restrict or impede the performance of its obligations under this Agreement; and (iii) both parties shall materially comply with all laws, rules, and regulations applicable to its business and its performance of its duties hereunder. 

15. Miscellaneous. 

    1. This Agreement may at any time be modified by BloomWell to comply with regulations, laws, or requirements of local, state, and federal regulatory agencies having jurisdiction over the provision of the Services in the Territory.

    2. This Agreement shall be interpreted under and governed by the laws of the State of Delaware, without regard to conflict of laws principles.

    3.  No provision (or part thereof) of this Agreement which shall be declared invalid or unenforceable by a final non-appeasable ruling by a court or agency of competent jurisdiction shall in any way invalidate any other provision of this Agreement, all of which shall continue in full force and effect.

    4. The rights of BloomWell and Referral Representative hereunder are cumulative, and no exercise or enforcement by either party hereto of any right or remedy hereunder shall preclude the exercise or enforcement by such party of any right or remedy hereunder or any right or remedy to which it is entitled by law. Neither BloomWell nor Referral Representative shall be deemed to have waived any of its rights under the Agreement by virtue of any failure or refusal by that party to exercise any right under the Agreement or to require full compliance by the other party with its obligations under the Agreement.

    5. Neither BloomWell nor Referral Representative shall be liable for loss or damage or be deemed to be in breach of this Agreement if its failure to perform its obligations results from acts of God, fires, strikes, embargoes, war, insurrection, riot, and other causes beyond the reasonable control of the party. Any delay resulting from any of said causes shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable.

    6. Referral Representative agrees that it shall not at any time during the term of this Agreement or any renewal hereof, directly or indirectly, make, publish, or otherwise communicate through any medium any deleterious or disparaging remarks concerning BloomWell, BloomWell’s Marks (as defined in Section 7 hereof), BloomWell’s customers, Prospects or any product or service offered or provided by BloomWell or the cable industry generally. The Referral Representative acknowledges and agrees that BloomWell shall be entitled to injunctive and other equitable relief in the event of a breach or threatened breach of the foregoing described non-disparagement obligations. For purposes, if this Section 15(f), references to BloomWell, shall include BloomWell, its parents, subsidiaries, affiliates, and their respective officers, directors, and employees.

    7. The exhibits and schedules to this Agreement are a part of this Agreement, which constitutes the entire agreement of the parties, and there are no other oral or written understandings or agreements between BloomWell and the Referral Representative relating to the subject matter hereof. All prior or contemporaneous agreements, proposals, understanding, and communications between BloomWell and Referral Representative regarding the subject matter hereof, whether oral or written, are superseded by this Agreement.

    8. Referral Representative may not assign or otherwise transfer this Agreement (including by merger or operation of law) without the prior written approval of BloomWell, which consent shall not be unreasonably withheld. Subject to the foregoing, this Agreement shall be binding upon the parties hereto and their respective successors and assigns.

    9. The following provisions shall survive the expiration and termination of this Agreement: Sections 7, 8, 9, 10 12, 13, and such other sections, schedules, or exhibits hereto, that by their terms, may reasonably be expected to survive such expiration or termination.

    10. Except as otherwise specifically provided herein, this Agreement may not be modified or amended except by a written instrument executed by both parties.

    11. All notices required to be given under this Agreement must be given in writing and delivered either by hand delivery, by certified mail, by return receipt requested, postage prepaid, or by Federal Express or other recognized overnight delivery service, all delivery charges pre-paid, and addressed to the parties’ addresses referenced here: 

        To BLOOMWELL:

        BloomWell, LLC

        60 Commerce Street, Suite 1060

        Montgomery, AL 36104

        Attn: Sr. VP, Business Operations

         

        From Referral Representative:

        {yourName} on behalf of {nameOf}

        {businessAddress16}

          

        The Parties have executed this Agreement on the date(s) set forth below, to be effective as of {dateOf}(the "Effective Date").