These Referral Service Terms (the “Service Terms”) are incorporated into the Agent Agreement (the “Agreement”) between AppDirect and Technology Advisor referenced therein. All capitalized terms not defined in these Service Terms have the meaning assigned to them in the Agreement.
1. Services. The Services that may be Marketed by Technology Advisor to prospective customers, together with their respective commission rate, are set forth in the Marketplace (or as otherwise communicated by AppDirect in writing) (the “Services and Commission Plan”). The Services and Commission Plan may be amended by AppDirect from time to time.
2. Responsibilities. Technology Advisor’s responsibilities in Marketing the Services include, but are not limited to, identifying and qualifying prospective customers, designing solutions, closing sales, expanding the Services sold to customers and generating referrals from customers.
3. Order Processing. Orders for Services shall be submitted by Technology Advisor to AppDirect pursuant to the Marketplace or as otherwise determined by AppDirect (an “Order”). AppDirect will have the right, at its sole discretion, to accept or reject all or part of any Order without being liable to Technology Advisor. Technology Advisor acknowledges and agrees that all Orders placed with AppDirect are owned by, and the sole property of AppDirect. Technology Advisor agrees to (a) submit through AppDirect all Orders for which AppDirect has provided quotes, services or other operational support to Technology Advisor and (b) not transfer or remove from AppDirect, or attempt to transfer or remove from AppDirect, the Orders, including, without limitation, upon any Order renewal or Order modification. AppDirect will not be liable to Technology Advisor for any action or omission by a Provider.
4. Compensation.
4.1 Standard Commissions. With respect to the standard recurring commissions generated as a result of Technology Advisor’s Order: (a) AppDirect will remit to Technology Advisor a standard recurring commission (the “Advisor Standard Commission”) equal to the product of (x) either (i) the gross commission actually collected by AppDirect from the Provider(s) or (ii) the gross commission set by AppDirect in the event that the Provider is AppDirect or an AppDirect affiliate, as a result of Technology Advisor’s Order (the “Provider Standard Gross Commission”), multiplied by (y) the Technology Advisor’s applicable rate(s) as set forth in the Services and Commission Plan; and (b) AppDirect will retain a fee, including a fee equal to the difference between the Provider Standard Gross Commissions and the Advisor Standard Commission. AppDirect will pay the Advisor Standard Commission based on Provider statements received within the respective commission cycle period and in no event will AppDirect be liable for any Advisor Standard Commission to Technology Advisor until and if the Provider Standard Gross Commission is actually collected by AppDirect from the Provider(s).
4.2 Special Commissions (SPIFs and Bonuses). With respect to the special non-recurring commissions (if any) generated as a result of Technology Advisor’s Order: (a) AppDirect will remit to Technology Advisor a special non-recurring commission (the “Advisor Special Commission”) equal to the product of (x) either (i) the special non-recurring commission actually received by AppDirect from the Provider(s) or (ii) the special non-recurring commission set by AppDirect in the event an AppDirect affiliate is the Provider, as a result of Technology Advisor’s Order (the “Provider Special Gross Commission”), multiplied by (y) the Technology Advisor’s applicable rate(s) as set forth in the Services and Commission Plan; and (b) AppDirect will retain a fee, including a fee equal to the difference between the Provider Special Gross Commission and the Advisor Special Commission. AppDirect may, in its sole discretion, hold some or all of the Advisor Special Commission until order installed confirmation is received. AppDirect will in no event be liable for any Advisor Special Commission to Technology Advisor until and if the Provider Special Gross Commission is actually collected by AppDirect from the Provider(s).
4.3 Remittance. Commissions are remitted by AppDirect to Technology Advisor via AppDirect’s internal payment engine commonly known as “AppDirect Pay”. Technology Advisor must enroll in AppDirect Pay through the Marketplace If Technology Advisor fails to enroll in AppDirect Pay, AppDirect will remit commissions owed to Technology Advisor via ACH or check and charge Technology Advisor a processing fee of $50 per month (plus any applicable taxes/postage). AppDirect may establish an administrative fee if the commissions owed by AppDirect to Technology Advisor are below the threshold established from time to time for services and commissions. The commissions owed by AppDirect to Technology Advisor pursuant to this Section 4 will be paid no later than the last business day of the month immediately following the month in which the commission statement and provider payment are actually received by AppDirect.
4.4 Dispute. Technology Advisor must provide AppDirect written notice of any commission payment dispute no later than the earlier of: (a) 90 days after Technology Advisor’s receipt of the AppDirect commission payment, or (b) the last date of the dispute period in the applicable agreement between the corresponding Provider and AppDirect (the “Dispute Period”). If Technology Advisor fails to submit a dispute notification to AppDirect within the Dispute Period, AppDirect will have no obligation or liability whatsoever with respect to such dispute, including the amounts claimed thereunder.
4.5 Chargebacks. If AppDirect remits a commission that is subsequently owed, refunded or credited back to any Provider for any reason, or if AppDirect remits a commission to Technology Advisor in error, AppDirect may, in its sole discretion, either (a) deduct the amounts of such commission from any future remittances or commissions payable to Technology Advisor and/or (b) require Technology Advisor to repay such commission to AppDirect within thirty (30) days of AppDirect’s request therefor.
4.6 Survival. In the event the Agreement is not renewed or is terminated for any reason whatsoever, each Party’s rights and obligations under this Section 4, including (a) AppDirect’s obligations to pay commissions pursuant to Sections 4.1 and 4.2, and (b) AppDirect’s ownership of the Orders, including, without limitation, upon any Order renewal or Order modification
pursuant to Section 3, shall survive such non-renewal or termination of the Agreement.
5. Provider Agreements. Technology Advisor acknowledges and agrees that the Services offered through the Marketplace are governed by agreements between the Providers and AppDirect (the “Provider Agreements”). In the event a Provider Agreement provides for an obligation, covenant, undertaking or requirement that is not covered by the Agreement or the Service Terms (an “Additional Provider Requirement”), AppDirect will have the right to require that Technology Advisor comply with the Additional Provider Requirement. If Technology Advisor fails to comply with the Additional Provider Requirement, Technology Advisor will then no longer have the right to Market the Services of the Provider imposing such Additional Provider Requirement.