This Referral Agreement (this “Agreement”) is effective and entered into as of the date of acceptance (the “Effective Date”) by and between Build Fellowship, LLC, a Delaware limited liability company having a business address of 640 Axminister Drive, Fenton, MO 63026 (“Build”), and the entity agreeing to these terms and conditions (the “Company”; each of Build and the Company, a “Party,” and collectively, the “Parties”).
WHEREAS, Build provides cap-exempt H-1B visa sponsorships and related services to individuals and businesses (the “Services”);
WHEREAS, subject to the terms and conditions set forth in this Agreement, Build desires to engage the Company as a referral source for the referral of the Services to potential customers of Build; and
WHEREAS, this Agreement sets forth the terms and conditions pursuant to which the Company will provide such non-exclusive referral services to Build and pursuant to which Build will grant rights to certain Build confidential information and intellectual property, solely for use in connection with the provision of such services.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
Pursuant to the terms of, and subject to the conditions set forth in, this Agreement, Build hereby engages the Company, and the Company hereby accepts such engagement, to act as a non-exclusive referral source with respect to the promotion and marketing of the Services on behalf of Build during the Term (as hereinafter defined) (the “Referral Engagement”). The Company acknowledges that the Company is being engaged by Build for the Referral Engagement on a non-exclusive basis, and that Build reserves the right to enter into referral agreements or other similar arrangements with other parties with respect to the referral of the Services and other services and products of Build. In furtherance of the foregoing, the Company shall have no rights under such agreements with other parties or to any fees (including referral fees) for customers referred to Build by others or identified by Build itself. Notwithstanding the non-exclusive engagement by Build of the Company for the Referral Engagement set forth in this Section 1, nothing in this Section 1 shall limit or otherwise modify the Company’s exclusive obligations to Build set forth in Section 4.
From time to time during the Term, the Company may deliver to Build a written notice of the name (the “Prospective Customer Notice”) of any person or entity who is a bona fide potential customer of Build and the Company reasonably believes may have an interest in the Services (a “Prospective Customer”). Each Prospective Customer Notice shall be delivered to Build via e-mail to Danielle Goldman at referrals@buildfellowship.com (or such other person and/or e-mail address designated by Build from time to time).
If Build accepts the Prospective Customer identified in the Prospective Customer Notice (such accepted Prospective Customer, a “Qualifying Customer”), Build shall deliver to the Company a written notice of such acceptance (e-mail being sufficient) (an “Acceptance Notice”); provided that, for the avoidance of doubt, Build may reject any Prospective Customer and/or not deliver an Acceptance Notice with respect to any Prospective Customer for any reason or no reason at all. Following the Company’s receipt of the Acceptance Notice, the Company agrees to act as a liaison (including coordinating introductions and meetings) between the Qualifying Customer and Build, which such obligation shall be included in the Referral Engagement; provided, however, that the foregoing shall not create a right of the Company to participate in such meetings and/or introductions and the Company’s participation in such meetings and/or introductions shall be in the sole and absolute discretion of Build. If (x) the Company is unable to facilitate such introductions and/or meetings between Build and the Qualifying Customer within thirty (30) calendar days of the Company’s receipt of the Acceptance Notice for any reason or no reason or (y) such Qualifying Customer does not enter into a Qualifying Contract (as hereinafter defined) within one (1) year following the Company’s receipt of the Acceptance Notice for whatever reason or no reason, such Prospective Customer shall no longer be a Qualifying Customer for purposes of this Agreement.
Build will have sole discretion over entering into an agreement for Services with any Qualifying Customer (such written agreement entered into with a Qualifying Customer during the one (1) year period following the Company’s receipt of the Acceptance Notice pursuant to Section 2.2, a “Qualifying Contract”), and this Agreement shall not create any obligation of Build to enter into any agreement (including a Qualifying Contract) with any Prospective Customer and/or Qualifying Customer. The prices, terms, and conditions under which Build offers or sells any of the Services shall be determined by Build in its sole and absolute discretion. Build shall have the authority to control all discussions and negotiations regarding any proposed or actual offering or sale of the Services. Nothing in this Agreement obligates Build to actually offer or sell any Services or consummate any transaction with any Prospective Customer and/or Qualifying Customer. Build may terminate any negotiations or discussions at any time and for any reason or no reason with any Prospective Customer and/or Qualifying Customer and has the right not to proceed with any sale of Services without any liability or obligation to pay compensation to the Company or otherwise unless and until a Qualifying Customer enters into a Qualifying Contract.
The Company shall provide to Build (a) documentation and/or information regarding each Prospective Customer as may be requested by Build in connection with Build’s assessment of such Prospective Customer; and (b) such additional assistance and cooperation as Build may request in connection with the Referral Engagement and the facilitation of introductions and meetings with any Qualifying Customers pursuant to Section 2.2.
In consideration of the Referral Engagement, Build shall pay to the Company an amount equal to $1,000 (the “Referral Fee”) for each Qualifying Customer who enters into a Qualifying Contract pursuant to Section 2. Notwithstanding any term to the contrary in this Agreement, no Referral Fee or other compensation will be owed to the Company (a) for any person or entity (including any Prospective Customer) who is not a Qualifying Customer and/or did not execute a Qualifying Contract; (b) for any revenue derived from any Qualifying Customer and/or pursuant to any Qualifying Contract; (c) unless and until a binding Qualifying Contract is entered into by and between Build and the applicable Qualifying Customer; and/or (d) if the Company is then in breach of any of its obligations under this Agreement. Build may, in its sole and absolute discretion, satisfy any obligation owed to Build by the Company (including any liability with respect to the Company’s indemnification obligations and/or a breach of this Agreement) by way of deduction from any payment due to the Company.
Subject to the satisfaction of the conditions set forth in this Agreement with respect to the payment of the Referral Fee, Build shall pay the Company the Referral Fee for any Qualifying Customer within thirty (30) calendar days after the execution of the Qualifying Contract by Build and the applicable Qualifying Customer. The Company shall be responsible for payment of all taxes, fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of any consideration (including the Referral Fee) to the Company under this Agreement.
During the Term, the Company agrees to:
The Company agrees to defend, indemnify and hold harmless Build and its affiliates, and Build’s and its affiliates’ respective officers, directors, members, stockholders, managers, employees, representatives, and agents, from and against any claim, loss, liability, cost, judgment, award, settlement, penalty, action, damage, charge, expense or fee (including reasonable attorneys’ fees and the costs of enforcing any rights under this Agreement) of any nature, and any claims, allegations or suits to the extent they arise out of (a) any breach or violation by the Company of any representations, warranties, obligations, duties, or responsibilities of the Company under this Agreement and/or (b) any negligent, reckless, or unlawful actions or omissions of the Company under this Agreement
The term of this Agreement commences on the Effective Date and continues for a period of three (3) years after the Effective Date, unless and until earlier terminated only as provided under this Agreement (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive one-year terms unless and until earlier terminated as provided under this Agreement (each a “Renewal Term”, and together with the Initial Term, the “Term”).
Either Party may terminate this Agreement, effective immediately, upon written notice to the non-terminating Party (subject to the right to cure set forth herein), if the non-terminating Party breaches this Agreement (such breaching Party, the “Breaching Party”), and such breach is incapable of cure, or with respect to a breach capable of cure, the Breaching Party does not reasonably cure such breach within thirty (30) calendar days after receipt of written notice of such breach by the Party terminating this Agreement. Additionally, either Party may terminate this Agreement with immediate effect upon written notice to the other Party, if such other Party becomes insolvent, files a petition for bankruptcy, or commences or has commenced against such other Party proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. In addition to the foregoing, Build may terminate this Agreement without cause upon thirty (30) calendar days’ written notice to the Company; provided, however, in the event of a termination by Build pursuant to this sentence, Build shall pay to the Company any Referral Fees due and payable as of such date of termination of this Agreement.
Upon termination or expiration of this Agreement for any reason, or at any other time upon Build’s written request, the Company shall (a) deliver to Build all materials, information and other property of Build provided to the Company in connection with the Referral Engagement, (b) deliver to Build all documents and other media, including any copies containing, reflecting, incorporating, or based on the Confidential Information and/or Intellectual Property Rights, (c) permanently erase all of the Confidential Information and/or Intellectual Property Rights from the Company’s computer systems (including electronic mail systems) and document retention systems, (d) cause an authorized officer of the Company to certify in writing to Build that the Company has fully complied with the requirements of this Section 6.3.
The terms and conditions of this Section 6.4, Section 4.1, Section 5, Section 6.3, Section 7, Section 8, Section 9 and Section 10 shall survive the expiration or termination of this Agreement.
The Company acknowledges that the Services are in a highly competitive business, are national in scope, and are not limited to any specific geographic area in the United States of America, and therefore, the Company agrees that, during the Term and for a period of three (3) years after the termination of this Agreement (such period, the “Restricted Period”), the Company shall not, directly or indirectly, other than as consented to by Build in writing:
The Company agrees that it shall not, and that it will cause its affiliates and its representatives not to, at any time, disparage Build or any of its past or present employees, directors, managers, officers, members, products or services (including the Services). For purposes of this Agreement, the term “disparage” includes, without limitation, any comments or statements to the press (including comments or statements posted to the internet and/or any social media website), to any Build employees or to any person or entity with whom Build has a business relationship (including, without limitation, any current or prospective customer, client, supplier, vendor or referral source or other business relation) that would adversely affect in any manner (a) the offering of the Services or any business of Build (including, without limitation, any business plans or prospects), or (b) the business reputation of Build (including the Services). Nothing in this Section 7.5 shall prohibit the Company from providing truthful statements, testimony, or information to any court or any governmental authority in any litigation.
The Company agrees to treat all Confidential Information (as hereinafter defined) as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of Build in each instance, and not to use (for itself, any affiliate of the Company or any third party or otherwise) any Confidential Information for any purpose except for the benefit of Build in connection with the Referral Engagement.
As used in this Agreement, “Confidential Information” means any and all information disclosed to, acquired by, or developed by, the Company, or that otherwise becomes known to the Company, in each case, as a consequence of or through the Company’s business dealings with Build and Build’s customers, or as a result of or in connection with any other contact or association with Build or its affiliates, including, without limitation, and whether oral, written, printed, electronic, or in any other form or medium, Build’s past, present and future products, processes and services, know-how, designs, strategies, plans, assets, liabilities, costs, revenues, profits, organization, proprietary information, all types of trade secrets, software used or developed, in whole or in part, by Build (including source code), algorithms, computer processing systems and techniques, any information relating to Build’s clients, customers, and prospects, trade and business relationships, sources of leads, methods of doing business, purchasing, prices, research and development, research reports, designs and specifications, new product and service developments, comparative analyses of competitive products, services and operating procedures, finances, budgets and projections, sales, product planning, suppliers, marketing and other information, data and documents now existing or later acquired by Build, regardless of whether any of such information, data or documents qualify as a “trade secret” under applicable laws. Any Confidential Information now or hereafter acquired by the Company shall be deemed a valuable, special, and unique asset of Build that is received by the Company in confidence and as a fiduciary, and the Company shall remain a fiduciary to Build with respect to all of such Confidential Information.
Confidential Information will not include information that can be established by competent proof by the Company: (a) was already known to the Company, other than under an obligation of confidentiality, at the time of disclosure, as evidenced by its written records or (b) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the Company or became generally available to the public or otherwise became part of the public domain after its disclosure, other than through any act or omission of Company (or any person to whom or which Company disclosed such information) in breach of this Agreement. Confidential Information shall not be deemed to be generally available to the public or part of the public domain merely because such Confidential Information may be generally embraced in information available to the public, or because individual elements thereof may be separately found to be available to the public. Any combination of individual elements of Confidential Information shall not be considered to be within any of the exceptions set forth in (a)-(d) above merely because one or more individual elements of such combination are within the scope of such items. To the extent it otherwise constitutes Confidential Information, as provided herein, Assigned Rights and Materials shall be deemed to be the Confidential Information of Build and the exception of item (a) above shall not apply to such
The Company may disclose the Confidential Information only to those of its employees who need to know such Confidential Information to effect the provisions and purposes of this Agreement, and only so long as such employees are in turn bound by substantially similar non-disclosure and use obligations as set forth in this Section 8. The Company shall be responsible for any acts or omissions by its employees in respect of any such Confidential Information. The Company agrees to safeguard all Confidential Information in its possession or control using no less than the same degree of care that it uses to safeguard its own confidential information (and, in any event, using no less than commercially reasonable efforts). The Company shall in no event reverse engineer, disassemble, or decompile any products or services, including, without limitation, prototypes, software, or other tangible and intangible objects that embody the Build’s Confidential Information. Upon request, the Company shall destroy (which destruction shall be certified by an authorized officer of the Company) or return, at Build’s option, to Build all documents and copies of documents prepared or received by the Company that relate to, or contain, Confidential Information. Upon discovery of any prohibited use or disclosure of any Confidential Information, the Company will promptly inform Build in writing and use commercially reasonable efforts to prevent any further prohibited use or disclosure; provided, however, such actions shall in no manner relieve the Company’s obligations or liabilities for breach hereunder.
In the event that the Company is requested or required (by law, rule, regulation or in any governmental, regulatory, arbitration or judicial process) to disclose any Confidential Information, the Company will give Build prompt written notice of such request or requirement so that Build may seek an appropriate order or other remedy protecting the Confidential Information from disclosure, and (if requested by Build) the Company will reasonably cooperate with Build to obtain such protective order or other remedy. In the event that a protective order or other remedy is not obtained, or if Build waives its right to seek such an order or other remedy, the Company may, without liability under this Agreement, disclose only that portion of the Confidential Information that the Company is advised by legal counsel that it is legally required to disclose.
The terms of this Section 8 shall remain in effect during the Term and the Restricted Period and for a period of five (5) years after any expiration or termination of both the Term and the Restricted Period; provided, however, with respect to any Confidential Information that is a trade secret under applicable law, the Company’s obligations under this Section 8 shall continue beyond the expiration of such five (5) year period until such information is no longer a trade secret under applicable law.
During the Term, Build hereby grants the Company the non-exclusive, non-transferrable, non-sublicensable, terminable right and license to use the Build Materials and the Build Marks (as such terms are defined below), solely for purposes of performing referral services for Build under and in accordance with the terms and conditions of this Agreement, which may include marketing and promotion of Services (the “Licensed Purposes”), in each case subject to the terms of this Section 9. “Licensed Marks” means and refers to the BUILD trademarks and service marks, as shown on Exhibit A, together with any other service marks or trademarks hereafter identified in writing by Build as licensed under this Agreement, and all goodwill associated therewith. “Licensed Materials” means and refers to any and all materials provided by Build to the Company from time to time for the Company’s use in providing referral services, including all such materials that describe all or any portion of the Services.
The Company may use Build Materials, in the form provided by Build, solely for purposes of marketing and promoting the Services. In the event the Company wishes to propose revisions to the Build Materials or new materials (whether in written, electronic, or other form) using the Build Marks, it shall submit such proposed revisions or new materials to Build for prior review and written approval. Build agrees that it will use reasonable efforts to affirmatively approve or disapprove of any submission within fifteen (15) business days after its receipt of any such materials, but there is no deemed approval and the Company agrees that it will not use any such materials until the Company first receives Build’s prior written approval to use any and all such materials.
The Company understands and agrees that Build may, from time-to-time, provide written standards, rules, and procedures to the Company regarding the use of any Build Marks or Build Materials on or in connection with any Licensed Purposes and that Build may change, amend, revise, or otherwise modify such standards, rules, and procedures from time to time, in its sole discretion. The Company shall use and employ the Build Marks and the Build Materials on and in connection with the Licensed Purposes and shall provide its referral services for Licensed Purposes under the Build Marks and using the Build Materials in strict accordance with the standards, rules and procedures set by Build; provided, however, that if any change to any such standards, rules, or procedures require a change to any materials or uses for such materials previously approved by Build in accordance with Section 9.2 above, the Company shall have a commercially reasonable time to implement such change to such standards, rules, or procedures. The Company shall not alter, obscure or remove any of Build’s trademark or copyright notices or any other proprietary rights notices placed on the Services or Build Materials and shall comply with all instructions provided by Build regarding trademark notices and notices of use of Build Marks and Build Materials under license.
The Company hereby assigns and agrees to assign to Build any and all rights, title and interest (including intellectual property rights) in or to any and all: (a) ideas, suggestions or anything else about the Build Materials or Services (such as ways to improve any of the Build Materials or the Services) that the Company provides or otherwise suggests to Build, (b) any edited, altered or derivative works of any Build Materials created by or on behalf of the Company or (c) any written, artistic, or other materials that bear or use the Build Marks (collectively, the “Assigned Rights and Materials”). The Company agrees to execute such documents and otherwise take such steps (including to cause any Company employee to execute or take such steps) that Build deems necessary or appropriate to confirm Build’s exclusive ownership in and to any Assigned Rights and Materials.
The Company further acknowledges and agrees that:
The Company will not, directly or indirectly, and will not cause or encourage any person or entity to:
The Company shall use its best efforts to prevent unauthorized use or infringement of the Build Marks and the Build Works. In the event that the Company becomes aware of threatened, intended or actual infringement of the Build Marks or Build Works, it will immediately notify Build in writing of such event and will cooperate with Build in the investigation and pursuit of such infringer. Build shall have the sole discretion to determine how to handle or otherwise deal with any such unauthorized use or suspected infringement or misappropriation, or in defending against any declaratory judgment action alleging invalidity, unenforceability or non-infringement of any Build Marks or Build Works, including the right to settle or otherwise compromise any dispute or lawsuit, and shall retain all damage awards or settlements resulting therefrom.
On expiration or earlier termination of this Agreement, the Company will immediately cease all display, advertising, promotion and use of all of Build Marks, Build Material and other intellectual property or proprietary rights of Build.
The Company may not assign or transfer any of its rights or obligations under this Agreement (including any license granted hereunder), by operation of law or otherwise, including by merger, reorganization, consolidation, Change of Control (as hereinafter defined), or sale of all or substantially all of Company’s assets, or delegate any of its duties under this Agreement, to any third party without Build’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void. The Company shall obtain the written consent of Build, which consent may be withheld in Build’s sole and absolute discretion, prior to the consummation of a Change of Control of the Company.
A “Change of Control” means the following: (a) a transaction or series of related transactions in which a person, or a group of related persons, acquires directly or indirectly from equity holders of the Company capital stock or other equity of the Company representing more than fifty percent (50%) of the outstanding voting power of the Company; (b) a merger, consolidation or other transaction in which the Company is a party, except any such transaction involving the Company in which the shares of capital stock of the Company outstanding immediately prior to such transaction continue to represent, or are converted into or exchanged for shares of capital stock that represent, immediately following such transaction, at least a majority, by voting power, of the capital stock of (i) the surviving or resulting entity; or (ii) if the surviving or resulting entity is a wholly owned subsidiary of another entity immediately following such transaction, the parent entity of such surviving or resulting entity; or (c) the sale, lease, transfer, exclusive license or other disposition, in a single transaction or series of related transactions, by the Company of all or substantially all the Company’s assets. Notwithstanding the foregoing, Build may freely assign, transfer and/or delegate any of its rights or obligations under this Agreement without the consent of, or notice to, the Company. This Agreement will be to the benefit of and be binding upon each of the Parties and each of their respective permitted successors and permitted assigns.
All notices, requests, consents, claims, demands, waivers, and other communications shall be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the receiving party from time to time in accordance with this Section 10.2). All notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid).
This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement shall be governed by, and enforced in accordance with, the law of the State of Missouri, including its statutes of limitations, without regard to the conflicts of law principles thereof to the extent that such principles would direct a matter to another jurisdiction.
Each Party agrees that it shall bring any claim or action in respect of or arising under or relating to this Agreement or the transactions contemplated hereby exclusively in the state or federal courts of the State of Missouri (the “Chosen Courts”); and each Party (i) irrevocably submits to the exclusive jurisdiction of the Chosen Courts, (ii) waives any objection to the laying of venue in any such action or proceeding in the Chosen Courts, (iii) waives any objection that the Chosen Courts are an inconvenient forum or do not have jurisdiction over any Party and (iv) agrees that mailing of process or other papers in connection with any such action or proceeding in the manner provided in Section 10.2 or in such other manner as may be permitted by law shall be valid and sufficient service thereof.
The Parties’ rights and remedies under this Agreement are cumulative. In the event a Party breaches or threatens to breach this Agreement (including, without limitation, Section 4, Section 7, Section 8 and/or Section 9), each Party hereby acknowledges and agrees that money damages would not afford an adequate remedy and that such other Party shall be entitled to seek a temporary or permanent injunction or other equitable relief restraining such breach or threatened breach from any Chosen Court without the necessity of showing any actual damages, and without the necessity of posting any bond or other security. Any equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages, or other available forms of relief. The Parties further agree to waive the defense that a remedy at law would be adequate or an award of specific performance is not an appropriate remedy for any reason at law or in equity, and any requirement for securing or posting of any bond in connection with any such remedy. If any legal action is brought to enforce this Agreement, the prevailing Party will be entitled to receive its attorney’s fees, court costs, and other collection expenses, in addition to any other relief it may receive.
All waivers must be in writing and executed by the Party waiving compliance. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
If any provision of this Agreement is unenforceable, invalid or illegal in any jurisdiction, such provision shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under the applicable law of such jurisdiction (provided that such change or interpretation shall only apply with respect to the operation of such provision in the particular jurisdiction where such adjudication is made).
The Company is an independent contractor of Build, and this Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between Build and the Company for any purpose. The Company shall be solely responsible for all costs or expenses that it may incur in the performance of its activities under this Agreement. Any persons employed or engaged by the Company shall remain the Company employees or contractors and the Company shall be fully responsible for them and indemnify Build against any claims made by or on behalf of any such employees or contractors.
This Agreement supersedes any and all oral or written agreements or understandings between the Parties, as to the subject matter of the Agreement. This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party.
This Agreement may be executed in one or more counterparts, duplicate originals, or electronic (including DocuSign) or facsimile versions, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
