Terms & Conditions: Referral Program

Effective May 1st, 2023

Last Modified: May 30th, 2024

This is a contract between you (the "Referrer") and us ("Paloma®"). It describes how we work together.

The Referral Program Agreement applies to your participation in our Referral Program (the "Referral Program"). You cannot participate in our Referral Program unless you agree to them.

We periodically update these terms. We might also choose to replace these terms in their entirety if, for example, the Referral Program changes, ends, or becomes part of an existing program. If we update or replace the terms we will let you know via electronic means, which may include an in-app notification or by email or by SMS. If you don't agree to the update or replacement, you can choose to terminate as we describe below.

Definitions

“Paloma Referral Program” means our referral program as described in this Agreement.

"Referrer" means the existing authorized actual user of Paloma Products who is sharing a Referrer Link with potential Paloma customers.

“Referrer Lead” means a customer prospect who clicks on a Referrer Link that we made available to you via the Referral Tool.

“Referrer Link” means the unique tracking link you promote or share through other channels.

“Referrer Policies” means the policies applicable to referrers which we may make available to you from time to time.

“Referral Tool” means the tool that we make available to you upon your completion of the signup form to enroll in the Referral Program.

“Agreement” means this Referral Program Agreement and all the materials referred or linked to in here.

"Bonus Policies" means the policies applicable to referrers and referrer leads which we may make available to you from time to time.

“Referral Commission” means an amount described in the Referral Tool that is paid to the Referrer for each Conversion.

“Bonus Comission” means an amount that is paid to the Referrer for each Conversion that meets the Bonus Policies, to be paid on a schedule to be defined by the Bonus Policies.

“Commission” means an amount inclusive of both the Referral Commission and Bonus Commission.

“Conversion” means the event at which a Lead becomes eligible for Commission pursuant to the ‘Conversion’ section of this Agreement.

“Referral Customer” means the authorized actual user of the Paloma Products who has signed up for or purchased the Paloma products after being a Referral Lead.

“Customer Data” means all information that Referral Customer submits or collects via the Paloma Products and all materials the Referral Customer provides or posts, uploads, inputs or submits for public display through the Paloma Products.

“Paloma Products” means any products and services that we offer, including all of our ecommerce software.

“We”, “us”, “our”, and “Paloma” means Paloma Works PBC, d/b/a Paloma.

“You” and “Referrer” means the party, other than Paloma, entering into this Agreement and participating in the Referral Program.

Non-Exclusivity

This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.

Referrer Acceptance

Once you complete the signup form to become a Referrer, you will be notified of your acceptance to the Referral Program. Upon notification of acceptance, the terms and conditions of this Agreement shall apply in full force and effect, until terminated, pursuant to the terms set forth below.

You will comply with the terms and conditions of this Agreement at all times, including any applicable Policies.

Conversions

  1. Referral Program Limits. Each accepted Referrer Lead will expire according to the information provided in the Referral Tool from the date the Referrer Lead clicked on the Referral Link that was made available by you. We will pay you Referral Commission as described in the Referral Tool for each new Referral Customer who completes an applicable Conversion after clicking on a Referral Link made available by you, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement.
  2. Eligibility. To be eligible for Commission (i) a Referral Lead must be accepted and valid in accordance with the “Acceptance and Validity” section, (ii) a Conversion must have occurred, (iii) a Referral Customer must remain a customer during the locking period in the Referral Tool. You are not eligible to receive Commission or any other compensation from us if (i) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction; (ii) the applicable Referral Customer objects to or prohibits such compensation or excludes such compensation from its payments to us; (iii) the Referral Customer has paid or will pay such commissions, referral fees, or other compensation directly to you, (iv) the Commission payment has been obtained by fraudulent means, misuse of the Referral Link, in violation of any Referral Program Policies that we make available to you, misuse of the Referral Tool or by any other means that we deem to breach the spirit of the Referral Program, or (v) the Referral Customer is eligible to receive commission in relation to the Conversion through any other program. In competitive situations with other referrers, we may elect to provide the Commission to the referrer that we deem to be the most eligible for the Commission, at our discretion. We may discontinue Commission payments should any of the eligibility criteria set forth in this subsection fail to be met at any time.
  3. Acceptance and Validity. You will only be eligible for a Commission payment for any Conversions that derived from Referrer Leads generated by the Referral Link that we make available to you and are accepted by Paloma. A Referrer Lead will be considered valid and accepted if, in our reasonable determination: (i) it is a new potential customer of ours, (ii) is not, at the time of submission or sixty (60) days prior, one of our pre-existing customers, or involved in our active onboarding or sales process, and (iii) it is a business that has sold products through an Instagram Live in the past ninety (90) days. Notwithstanding the foregoing, we may choose not to accept a Referrer Lead in our reasonable discretion. If a Referrer Lead does not convert within the time period described in the Referral Tool (or if applicable, the Program Policies) of their first click on the Referral Link, you will not be eligible for a Commission payment, even if the Referrer Lead decides to convert after the time period has expired. A Referrer Lead is not considered valid if their first click on the Referrer Link is after this Agreement has expired or terminated.
  4. Commission and Payment. In order to receive payment under this Agreement, you must have: (i) agreed to the terms of this Agreement (by completing signup through the Referral Tool); (ii) completed all steps necessary to create your account in the Referral Tool in accordance with our directions, (iii) have a valid and up-to-date payment method in the Referral Tool with such account (iv) completed any activity in order for the Referral Tool to process any payments that may be owed to you.
  5. Requirements for Payment; Forfeiture. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the requirements set forth in section 3(a)(i-iv) remain outstanding for six (6) months immediately following the close of a Conversion, then your right to receive Commission arising from any and all Conversions with the associated Referral Customer will be forever forfeited (each, a “Forfeited Conversion”). We will have no obligation to pay you commission associated with a Forfeited Conversion. Once you comply with all of the requirements in section 4(a)(i-iv), then you will be eligible to receive Commission on Conversions, as long as these Conversions do not involve the same Referral Customer associated with a Forfeited Conversion.
  6. Commission Payment. We or the Referral Tool will determine the currency in which we pay the Commission, as well as the applicable conversion rate. We will not pay more than one Commission payment or other similar fee on any given Conversion (unless we choose to in our discretion).
  7. Taxes. You are responsible for payment of all taxes and fees (including bank fees) applicable to the Commission. All amounts payable by us to you are subject to offset by us against any amounts owed by you to us.
  8. Commission Amounts. We reserve the right to alter or change the Commission amount as per the Referral Tool.
  9. Bonus. We reserve the right to offer additional Bonus Commissions according to the information as described in our Bonus Policies, provided that you remain eligible to receive Commission pursuant to the terms of this Agreement.

Trademarks

You grant to us a nonexclusive, nontransferable, royalty-free right to use and display your trademarks, service marks and logos (“Referrer Marks”) in connection with the Referral Program and this Agreement.

During the term of this Agreement, in the event that we make our trademark available to you within the Referral Tool, you may use our trademark as long as you follow the usage requirements in this section. You must: (i) only use the images of our trademark that we make available to you, without altering them in any way; (ii) only use our trademarks in connection with the Referral Program and this Agreement; (iii) comply with our vendor kit and Trademark Usage Guidelines; and (iv) immediately comply if we request that you discontinue use. You must not: (i) use our trademark in a misleading or disparaging way; (ii) use our trademark in a way that implies we endorse, sponsor or approve of your services or products; or (iii) use our trademark in violation of applicable law or in connection with an obscene, indecent, or unlawful topic or material.

Proprietary Rights

  1. Paloma’s Proprietary Rights. No license to any software is granted by this Agreement. The Paloma Products are protected by intellectual property laws. The Paloma Products belong to and are the property of us or our licensors (if any). We retain all ownership rights in the Paloma Products. You agree not to copy, rent, lease, sell, distribute, or create derivative works based on the Paloma Products in whole or in part, by any means, except as expressly authorized in writing by us.
  2. Referral Customer’s Proprietary Rights. As between you and Referral Customer, Referral Customer retains the right to access and use the dashboard associated with the Paloma Products. For the avoidance of doubt, Referral Customer will own and retain all rights to the Customer Data.

Confidentiality

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), (i) whether orally or in writing, that is designated as confidential, and (ii) Paloma customer and prospect information, whether or not otherwise designated as confidential. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party or (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party. The Receiving Party shall: (i) protect the confidentiality of the Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, (iii) not disclose Confidential Information of the Disclosing Party to any third party, and (iv) limit access to Confidential Information of the Disclosing Party to its employees, contractors and agents. The Receiving Party may disclose Confidential Information of the Disclosing Party if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.

Opt Out and Unsubscribing

You will comply promptly with all opt out, unsubscribe, "do not call" and "do not send" requests. For the duration of this Agreement, you will establish and maintain systems and procedures appropriate to effectuate all opt out, unsubscribe, "do not call" and "do not send" requests.

Term and Termination

  1. Term. This Agreement will apply for as long as you participate in the Referral Program, until terminated.
  2. Termination Without Cause. Both you and we may terminate this Agreement on fifteen (15) days written notice to the other party.
  3. Termination for Agreement Changes. If we update or replace the terms of this Agreement, you may terminate this Agreement on five (5) days written notice (email to suffice) to us, provided that you send us written notice (email to suffice) within ten (10) days after we send you notice of the change.
  4. Termination for Cause. We may terminate this Agreement: (i) upon thirty (30) days’ notice to you of a material breach if such breach remains uncured at the expiration of such period, (ii) upon fifteen (15) days notice to you of non-payment of any amount due to us if such amount remains unpaid at the expiration of such period, (iii) immediately, if you become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, (iv) immediately, if you breach the terms applicable to your subscription with us (if you have one), including if you default on your payment obligations to us or our affiliate, or (v) immediately, if we determine that you are acting, or have acted, in a way that has or may negatively reflect on or affect us, our prospects, or our customers.
  5. Effects of Expiration/Termination. Expiration of this Agreement, and termination of this Agreement: (i) without cause by us,(ii) by you with cause, (iii) by you according to the ‘Termination for Agreement Changes’ section, shall not affect our obligation to pay you a Commission, so long as the related payment by the Conversion is recognized by us within thirty (30) days after the date of such termination or expiration. We will not pay you fees on Conversions recognized by us after thirty (30) days after the date of such termination or expiration set out above. Provided however, in the event of termination without cause by you, or for cause by us, our obligation to pay and your right to receive any Commission will terminate upon the date of such termination, regardless of whether you would have otherwise been eligible to receive Commission prior to the date of termination. Except as expressly set forth in this section, you are not eligible to receive a Commission payment after expiration or termination of this Agreement. Upon termination or expiration, you will discontinue all use of and delete the Referral Tool that we make available to you for your participation in the Referral Program. Upon termination or expiration, a Referrer Lead is not considered valid, and we may choose to maintain it in our database and engage with such a prospect. Upon termination or expiration, you will immediately discontinue all use of our trademark and references to this Referral Program from your website(s) and other collateral or channels. For the avoidance of doubt, termination or expiration of this Agreement shall not cause a Referral Customer’s subscription agreement to be terminated.

Affiliate Representations and Warranties

You represent and warrant that: (i) you have all sufficient rights and permissions to participate in the Referral Program and to provision Paloma with Referrer Leads for our use in sales and marketing efforts or as otherwise set forth in this Agreement, and (ii) your participation in this Referral Program will not conflict with any of your existing agreements or arrangements.

You further represent and warrant that: (i) you will ensure that you are compliant with any trade or regulatory requirements that may apply to your participation in the Referral Program; (ii) you will not purchase ads that direct to your site(s) or through a Referral Link that could be considered as competing with Paloma’s own advertising, including, but not limited to, our branded keywords; (iii) you will not participate in cookie stuffing or pop-ups, false or misleading links are strictly prohibited; (iv) you will not attempt to mask the referring URL information; (v) you will not use your own Referral Link to purchase Paloma products for yourself; and (vi) you will not use any mechanisms to deliver leads other than through an intended consumer. This includes sourcing leads through compilations of personal data such as phonebooks, using fake redirects or other tools or automation devices to generate leads (including but not limited to robots, lframes, or hidden frames), or offering incentives to encourage purchases or signups.

Indemnification

You will indemnify, defend and hold us harmless, at your expense, against any third-party claim, suit, action, or proceeding (each, an "Action") brought against us (and our officers, directors, employees, agents, service providers, licensors, and affiliates) by a third party not affiliated with us to the extent that such Action is based upon or arises out of (a) your participation in the Referral Program, (b) our use of the prospect data you provided us, (c) your noncompliance with or breach of this Agreement, (d) your use of the Referral Tool, or (e) our use of the Referral Marks. We will: notify you in writing within thirty (30) days of our becoming aware of any such claim; give you sole control of the defense or settlement of such a claim; and provide you (at your expense) with any and all information and assistance reasonably requested by you to handle the defense or settlement of the claim. You shall not accept any settlement that (i) imposes an obligation on us; (ii) requires us to make an admission; or (iii) imposes liability not covered by these indemnifications or places restrictions on us without our prior written consent.

Disclaimers; Limitations of Liability

  1. Disclaimer of Warranties. WE AND OUR AFFILIATED COMPANIES AND AGENTS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY OR ACCURACY OF THE PALOMA PRODUCTS, PALOMA CONTENT, THE REFERRAL PROGRAM OR THE REFERRAL TOOL FOR ANY PURPOSE. APPLICATION PROGRAMMING INTERFACES (APIs) AND THE REFERRAL TOOL MAY NOT BE AVAILABLE AT ALL TIMES. TO THE EXTENT PERMITTED BY LAW, THE PALOMA PRODUCTS AND REFERRAL TOOL ARE PROVIDED "AS IS" WITHOUT WARRANTY OR CONDITION OF ANY KIND. WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND WITH REGARD TO THE PALOMA PRODUCTS AND THE REFERRAL TOOL INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
  2. No Indirect Damages. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR BUSINESS OPPORTUNITIES.
  3. Limitation of Liability. IF, NOTWITHSTANDING THE OTHER TERMS OF THIS AGREEMENT, WE ARE DETERMINED TO HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY, THE PARTIES AGREE THAT OUR AGGREGATE LIABILITY WILL BE LIMITED TO THE TOTAL COMMISSION AMOUNTS YOU HAVE ACTUALLY EARNED FOR THE RELATED CONVERSIONS IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO A CLAIM.
  4. Referral Tool. WE DISCLAIM ALL LIABILITY WITH RESPECT TO THE REFERRAL TOOL THAT YOU USE. WE DO NOT PROMISE TO MAKE THE REFERRAL TOOL AVAILABLE TO YOU, AND WE MAY CHOOSE TO DO SO, OR NOT TO DO SO, IN OUR DISCRETION.
  5. Cookie Duration. COOKIES USED AS PART OF THE REFERRAL TOOL HAVE A SET DURATION. IF A POTENTIAL CUSTOMER CLEARS THEIR COOKIES DURING THIS PERIOD, PALOMA SHALL NOT BE LIABLE FOR ANY COMMISSIONS THAT MAY HAVE BEEN OWED TO YOU.

General

  1. Amendment; No Waiver. We may update and change any part or all of this Agreement, including by replacing it in its entirety. If we update or change this Agreement, the updated Agreement will be made available to you via the Referral Tool and/or by email. The updated Agreement will become effective and binding on the next business day after we or the Referral Tool have notified you. When we change this Agreement, the "Last Modified" date above will be updated to reflect the date of the most recent version at https://getpaloma.com/terms-referralprogram. We encourage you to review this Agreement periodically. If you don’t agree to the update, change or replacement, you can choose to terminate as we describe above. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
  2. Applicable Law. This Agreement shall be governed by the laws of New York State, without regard to the conflict of laws provisions thereof. In the event either of us initiates an action in connection with this Agreement or any other dispute between the parties, the exclusive venue and jurisdiction of such action shall be in the state and federal courts in New York, New York.
  3. Force Majeure. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
  4. Actions Permitted. Except for actions for nonpayment or breach of a party’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than one (1) year after the cause of action has accrued.
  5. Relationship of the Parties. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
  6. Compliance with Applicable Laws. You shall comply, and shall ensure that any third parties performing sales or referral activities on your behalf comply, with all applicable foreign and domestic laws (including without limitation export laws and laws applicable to sending of unsolicited email), governmental regulations, ordinances, and judicial administrative orders. You shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to us, our customers, or to the public. Export laws and regulations of the United States and any other relevant local export laws and regulations may apply to the Paloma Products. You will comply with the sanctions programs administered by the Office of Foreign Assets Control (OFAC) of the US Department of the Treasury. You will not directly or indirectly export, re-export, or transfer the Paloma Products to prohibited countries or individuals or permit use of the Paloma Products by prohibited countries or individuals.
  7. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
  8. Notices. Notice will be sent to the contact address set forth herein (as such may be changed by notice given to the other party), and will be deemed delivered as of the date of actual receipt.
    To Paloma Works PBC, d/b/a Paloma: Paloma 169 Madison Ave #2050, New York, NY 10016
    To you: your address as provided in our account information for you.
    We may give electronic notices specific to you by email to your e-mail address(es) on record in our account information for you. We may give notice to you by telephone calls to the telephone numbers on record in our account information for you.
  9. Entire Agreement. This Agreement is the entire agreement between us for the Referral Program and supersedes all other proposals and agreements, whether electronic, oral or written, between us. We object to and reject any additional or different terms proposed by you, including those contained in your purchase order, acceptance or website. Our obligations are not contingent on the delivery of any future functionality or features of the Paloma Products or dependent on any oral or written public comments made by us regarding future functionality or features of the Paloma Products. It is the express wish of both you and us that this Agreement and all related documents be drawn up in English. We might make versions of this Agreement available in languages other than English. If we do, the English version of this Agreement will govern our relationship and the translated version is provided for convenience only and will not be interpreted to modify the English version of this Agreement.
  10. Assignment. You will not assign or transfer this Agreement, including any assignment or transfer by reason of merger, reorganization, sale of all or substantially all of its assets, change of control or operation of law, without our prior written consent. We may assign this Agreement to any affiliate or in the event of merger, reorganization, sale of all or substantially all of our assets, change of control or operation of law.
  11. No Third Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to or shall confer upon any person or entity (other than the parties hereto) any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
  12. Program Policies Page. We may change the Program Policies from time to time. Your participation in the Referral Program is subject to the Program Policies, which are incorporated herein by reference
  13. No Licenses. We grant to you only the rights and licenses expressly stated in this Agreement, and you receive no other rights or licenses with respect to us, the Paloma Products, our trademarks, or any other property or right of ours.
  14. Sales by Paloma. This Agreement shall in no way limit our right to sell the Paloma Products, directly or indirectly, to any current or prospective customers.
  15. Authority. Each party represents and warrants to the other that it has full power and authority to enter into this Agreement and that it is binding upon such party and enforceable in accordance with its terms.
  16. Survival. The following sections shall survive the expiration or termination of this Agreement: ‘Commission and Payment’, ‘Proprietary Rights’, ‘Confidentiality’, ‘Effects of Termination/Expiration’, ‘Indemnification’, ‘Disclaimers; Limitation of Liability’, ‘Non-Solicitation’ and ‘General’.
  17. Data Processing and Protection. The parties acknowledge that in connection with the Referral Program, each party may provide or make available to the other party Personal Data. To the extent that any Personal Data is processed in connection with the Project the terms set forth in the Paloma Privacy Policy (posted at: https://getpaloma.com/privacy), which are hereby incorporated by reference, shall apply.

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