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MarketMuse Referral and Affiliate Agreement

MarketMuse, Inc. (“Service Provider”) offers referral and affiliate relationships (“Partner”). Both Partner and Service Provider are in the business of software, marketing, and consulting and other related marketing, advertising, or consulting services; and the parties desire to enter into a referral relationship under which Partner shall refer potential clients to Service Provider in exchange a Referral Fee as defined within the Agreement.

These terms (“Terms”) apply to a user’s participation in the Program. By participating in the Program, users agree to use the Program as outlined herein, and consistent with any other terms we may apply to the Program. If you do not agree to these Terms in their entirety, then you cannot register and participate in the Program. Users also cannot where in so doing, they would violate any applicable law or regulations.

TERMS AND CONDITIONS

  1. DEFINITIONS

1.1 Referral.  A “Referral” means a reasonably qualified and bona fide client or customer for services for which Partner is directly responsible for soliciting and referring to Service Provider in writing, by phone, or a direct in person introduction. 

1.2 Referring Party.  The “Referring Party” means Partner who introduces a prospective client to Service Provider with the intent of having the prospective client work with Service Provider and not with Partner’s business.

1.3 Referral Date.  The “Referral Date” means the date a Referral is first introduced to Service Provider, including an introduction that occurred prior to the execution date of this Agreement.

1.4 Existing Client.  “Existing Client” means any client or customer to which Service Provider has furnished services within the period of twelve (12) months prior to the applicable Referral Date of a Referral.

1.5 Amount Collected. The “Amount Collected” means any and all forms of compensation including, but not limited to cash, stock, and any other forms of tangible or intangible property as compensation.  If Service Provider receives compensation that is not immediate liquid (such as stock in a startup), the Referring Party will maintain an interest in the future potential that this stock will someday be sold for cash or other fungible property. 

  1. ENGAGEMENT

2.1 Engagement. During the term of this Agreement, Partner shall undertake commercially reasonable best efforts to send Referrals to the Service Provider. The Referring Party shall not participate in any sales, meetings or negotiations nor have authority to offer or sell the products or services of the Service Provider. 

2.2 No Guarantee as to Creditability or Suitability. The Referring Party makes no representation or warranty about the creditability or suitability of any prospective customers introduced to the Service Provider, and the Service Provider, nor any of its directors, officers or shareholders, should in any way rely on Referring Party to perform any due diligence with respect to the creditability or suitability of any prospective customer.

2.3 Non-Exclusive. The referral relationship shall be non-exclusive and Partner shall not be prohibited from sending a referral to a third-party who is not associated with this Agreement. For avoidance of doubt, this Agreement shall not prohibit Partner from working directly with any Referral either prior to the Referral Date, or after the Referral Date.

  1. REFERRALS

3.1 Acceptance. Service Provider shall have complete discretion whether or not to accept or reject any business opportunity that results from a Referral. Service Provider shall determine all prices for its products and services at its sole discretion.  Nothing in this Agreement shall obligate Service Provider to consummate any transaction with a referred customer. Service Provider may reject any Referral that references any Existing Client.

3.2 Qualification Policy. Each Referral must provide Referee with the potential to obtain a real foothold into the Referral’s organization. Typically, a Lead that Referee will approve as a Referral will be a company:

  1. Which is a new Lead with which Referee has had no previous contact;
  2. With which Referrer already has an established relationship;
  3. To which Referrer has introduced Referee and its Referee Services to the key decision maker or a contact that can and will introduce Referee to a key decision maker;
  4. Whose timeframe for purchase is within six (6) months from the date when Referee first received the applicable Lead from Referrer.

3.3 Referral Fees. If, within six (6) months of the applicable Referral Date, a Referral enters into an agreement with Service Provider to provide its services, Referring Party shall be entitled to 10 percent (10%) of the total amount collected by Service Provider to the Referral (“Referral Fees”) for the first twelve (12) months of the subscription period (or the invoiced amount for the initial subscription if such subscription is less than 12 months, whichever is less). Referral fees apply to monthly recurring revenue only.

3.4 Payment of Referral Fees. Service Provider shall provide Referring Party with a copy of any contract for services that Service Provider and Referral execute (the “Referral and Service Provider Agreement”) that evidence the total compensation Referral shall pay to Service Provider for its services within thirty (30) days of payment collections.  Any confidential or proprietary information contained in the Referral and Service Provider Agreement may be redacted prior to delivery to Referring Party.  The Referral Fees shall be due to Referring Party within thirty (30) days of collecting payment from the client.

  1. TERM AND APPLICABILITY OF PAST ACTIVITIES

4.1 Term. This Agreement shall become effective on the date this agreement is signed by all parties and will remain in effect until terminated by one of the parties.  A party may terminate this Agreement at any time by giving at least thirty (30) days’ notice to the other, however, each party’s obligation to pay Referral Fees shall survive the termination of this Agreement for one year if a Referral has opted to pay on a monthly basis and is still contracted with Service Provider at the time This Agreement is terminated. 

4.2 Past Activities. The parties acknowledge that Partner may have provided Referrals for a period of time prior to the date of this Agreement (the “Prior Period”). Accordingly, both parties agree that if and to the extent that, during the Prior Period if a Referral enters into an agreement with the Service Provider to provide its services, the Referring Party shall be entitled to Referral Fees as stipulated within Section 3.2(a) of this Agreement.

  1. RELATIONSHIP OF PARTIES

This Agreement does not create a joint venture, partnership, or principal-agent relationship between the parties, and nothing in this Agreement may be used to imply such a relationship. Neither party has the right, power, or authority to obligate or bind the other in any manner unless authorized in writing by the other party in a specific instance.  The parties do not intend to share profits or losses arising from the referral relationship, to co-own a business or any property, or to create a taxable entity under I.R.C. § 761(a).  No employees of a party are under the control, management, or supervision of the other and are not intended to be employees of the other for purposes of any federal, state, or local laws or regulations including, but not limited to, those covering unemployment insurance, employment taxes, and workers’ compensation.

  1. INTELLECTUAL PROPERTY

This agreement does not give either party any ownership rights or interest in the other party’s trade name, trademarks, copyrights, patents, trade secrets, know-how, proprietary data, confidential information, or other intellectual property.  Each party agrees to comply with the instructions of the other regarding the use of the other party’s intellectual property in the promotion of the other party’s product or services, including properly marking promotional material with the other party’s trademarks and copyrights and properly marking samples of products on which the other party holds one or more patents, whether issued or pending.

  1. CONFIDENTIAL INFORMATION

7.1 Definition.  “Confidential Information” means all information that has been developed by one of the parties (“Owner”), which the party considers valuable, proprietary, and confidential and which is disclosed to the other party or any of its employees or agents (“Recipient”).  Confidential Information includes all materials, notes, analyses, business processes, compilations, studies, or other physical or electronic documents, whether prepared by the Owner or by others, to the extent that such documents contain, reflect, or are otherwise based in whole or in part on Confidential Information. Confidential Information does not include any information, or any portion of any document based thereon, that: (a) was known to the Recipient at the time of its disclosure by the Owner; (b) was or becomes generally available to the public other than as a result of a disclosure by the Recipient; or (c) was or becomes available to the Recipient on a non-confidential basis from a source other than the Owner, provided that such source is not, to the Recipient’s knowledge, subject to a confidentiality obligation with respect to such information.

7.2 Limitations on Disclosure. Recipient must follow commercially reasonable procedures to maintain the confidentiality of Owner’s Confidential Information and may not disclose, reproduce, or otherwise discuss or make available all or any part of the Confidential Information in any form to any person or entity at any time.  However, Recipient may disclose all or any part of the Confidential Information to its employees and agents on a need-to-know basis relating solely to the performance of this agreement.  Recipient must inform each of its employees and agents to whom the Confidential Information is disclosed of the nature of the information and must require them to treat such information confidentially. At the request of Owner, Recipient must obtain confidentiality agreements in a form approved by Owner from each of its employees and agents to whom the Confidential Information is disclosed.  If Recipient is requested or ordered to disclose all or any part of the Confidential Information in any judicial or administrative proceeding, Recipient must give Owner prompt written notice of such request or order so that Owner may take appropriate lawful preventive action.  If Recipient is nonetheless compelled to disclose all or any part of the Confidential Information, it may do so without liability under this Agreement as long as it uses its best efforts to obtain assurances that confidential treatment will be accorded to such information.

7.3 Limitations on Use.  Recipient may not use the Confidential Information for any purpose other than the performance of this Agreement.

7.4 Return or Destruction.  Upon the request of Owner, Recipient must promptly return all copies of all Confidential Information furnished by Owner, and must promptly destroy all other Confidential Information, including all copies of notes, analyses, compilations, studies, or other physical or electronic documents prepared by Recipient.  Each party’s Confidential Information must be returned or destroyed promptly following the termination of this Agreement.

  1. NON-SOLICITATION OF PERSONNEL

Service Provider agrees not to hire or engage in any attempt to hire employees or independent contractors of Partner during the term of this Agreement and for a period of one (1) year following its termination. 

  1. REMEDIES

Each of the parties agrees that money damages will not be a sufficient remedy for any breach of the sections of this Agreement relating to confidential information and non-solicitation of personnel.  Accordingly, a party will be entitled to specific performance and injunctive or other equitable relief as a remedy for any such breach, and the parties each further agrees to waive any requirement for the securing or posting of any bond in connection with such remedy.

  1. INDEMNIFICATION

Each party agrees to indemnify and hold harmless the other party and its agents and employees from and against all claims, demands, obligations, and liabilities of any nature whatsoever, and all related costs and expenses (including reasonable attorney’s fees), resulting solely and directly from the indemnifying party’s breach of this Agreement, negligence, or willful misconduct.  Each party agrees to give the other prompt written notice of any claim or other matter as to which it believes this indemnification provision applies.  The indemnifying party has the right to defend against any such claim with counsel of its own choosing and to settle or compromise such claim as it deems appropriate.  Each party also agrees to cooperate with the other in the defense of any such claim or other matter.

  1. LIMITATION OF LIABILITY

IN NO EVENT WILL ANY PARTY BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, DELAY, OR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH, RELATING TO OR ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THE SERVICES OR THIS AGREEMENT SHALL NOT, IN ANY EVENT, EXCEED THE TOTAL AMOUNT OF REFERRAL FEES PAID BY EITHER PARTY.

  1. MISCELLANEOUS PROVISIONS

12.1 Governing Law.  The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the state of California, without giving effect to principles of conflicts of law.

12.2 Force Majeure.  Either party shall be excused from the performance of this agreement and shall not be liable for any delay in whole or in part, to the extent caused by the occurrence of any fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of the excused party. 

12.3 Entire Agreement. THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES. THERE ARE NO UNDERSTANDINGS, AGREEMENTS, OR REPRESENTATIONS, ORAL OR WRITTEN, NOT SPECIFIED HEREIN REGARDING THIS CONTRACT. NO AMENDMENT, CONSENT, OR WAIVER OF TERMS OF THIS CONTRACT SHALL BIND EITHER PARTY UNLESS IN WRITING AND SIGNED BY ALL PARTIES. ANY SUCH AMENDMENT, CONSENT, OR WAIVER SHALL BE EFFECTIVE ONLY IN THE SPECIFIC INSTANCE AND FOR THE SPECIFIC PURPOSE GIVEN. 

12.4 Notices.  Any notice, demand or request required or permitted to be given under this Agreement shall be in writing and shall be deemed sufficient when delivered personally or by overnight courier or sent by email, or 48 hours after being deposited in the U.S. mail as certified or registered mail with postage prepaid, addressed to the party to be notified at such party’s address as set forth on the signature page, or by email.

12.5 Severability.  If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith.  In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of the Agreement shall be interpreted as if such provision were so excluded, and (iii) the balance of the Agreement shall be enforceable in accordance with its terms. 

12.6 Mediation. Any controversy or claim arising out of or relating to this Agreement, or breach thereof, will be settled by mediation and/or arbitration administered by the American Arbitration Association (AAA) under its commercial mediation and/or arbitration rules.  Furthermore, the parties agree to have such controversy or claim settled at the AAA location in San Francisco, California.

12.7 Construction.  This Agreement is the result of negotiations between and has been reviewed by each of the parties hereto and their respective counsel, if any; accordingly, this Agreement shall be deemed to be the product of all of the parties hereto, and no ambiguity shall be construed in favor of or against any one of the parties hereto. 

12.8 Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, and all of which together shall constitute one and the same agreement.