DRINKS Partner Program Agreement

PLEASE READ THIS AGREEMENT CAREFULLY. This DRINKS Partner Program Agreement (collectively, with the DRINKS Privacy Policy, the “Agreement”) is a legal agreement between you (yourself personally or the entity you represent that is submitting the DRINKS Partner Program application form to DRINKS, collectively the “Referring Party” or “You”), and Drinks Holdings, Inc. (“DRINKS”) effective as of the date You are accepted by DRINKS via email into the DRINKS Partner Program. You and DRINKS are each a “Party” and, collectively, the “Parties” to this Agreement.

BY CLICKING THE “SUBMIT” BUTTON AND/OR PARTICIPATING IN OR PERFORMING ANY ACTIVITIES IN FURTHERANCE OF THE DRINKS PARTNER PROGRAM, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT AND YOU AGREE TO THE DRINKS PRIVACY POLICY; (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON YOUR OWN BEHALF (IF AN INDIVIDUAL) OR (IF AN ENTITY) ON BEHALF OF THE ENTITY YOU REPRESENT THAT IS SEEKING TO PARTICIPATE IN THE DRINKS PARTNER PROGRAM, AND TO BIND THAT ENTITY TO THIS AGREEMENT; AND (3) ALL OF THE INFORMATION YOU SUBMIT IN THE DRINKS PARTNER PROGRAM APPLICATION FORM IS TRUE AND ACCURATE. IF YOU DO NOT ACCEPT OR UNDERSTAND THIS AGREEMENT, YOU MAY NOT REGISTER FOR OR PARTICIPATE IN THE DRINKS PARTNER PROGRAM.

DRINKS provides technology that supports e-commerce vendors and marketers of alcohol beverages, including, but not limited to, a real-time alcohol tax and compliance application for alcohol producers and retailers (“DRINKS Assure” or “ASSURE”) and a proprietary technology platform that connects marketers with licensed sellers of beverage alcohol in connection with a ship-to-home program (“DRINKS Anywhere” or “ANYWHERE” and collectively, with ASSURE and other DRINKS products, the “DRINKS Products” or the “Products”), and also offers a referral program to generate prospective client leads for DRINKS Products (the “Partner Program”).

You desire to refer DRINKS Product client leads from time to time to DRINKS in exchange for a Referral Fee (as defined below) when such lead results in revenue to DRINKS pursuant to the terms and conditions set forth in this Agreement.

Therefore, in consideration of the premises and the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto covenant and agree as follows.

 

  1. Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.
    • “Commission Period” means the period of time, as set forth in the Fee Schedule, from the date a DRINKS Product contract between DRINKS and a Qualified Lead received from the Referring Party is signed and becomes effective.
    • “Confidential Information” means the information submitted in the Lead Form, all Prospective Referrals and all Qualified Leads, in addition to any other information disclosed by one Party to the other Party that the disclosing Party expressly marks, labels or identifies to the receiving Party as confidential. Confidential Information is subject to all of the non-disclosure and non-use provisions set forth in Section 5, below.
    • “DRINKS Contract” means a valid and binding agreement between a Prospective Referral and DRINKS for the purchase of DRINKS Products for a minimum term of one (1) year that is not cancelled or terminated by either DRINKS or the Prospective Referral for any reason before the end of the one-year term.
    • “Fee Schedule” means the Referral Fee basis, rate(s) and/or calculation information that will be emailed to you by DRINKS if you are accepted into the DRINKS Referral Program. For the avoidance of doubt, the Fee Schedule is incorporated into the Agreement by this reference.
    • Law” means any applicable law, regulation, order or other requirement imposed or compelled by a governing or regulatory authority having legal force (whether federal, state or local), including any treaty, statute, common law, judicial decision, rule, regulation, code or ordinance.
    • “Net Revenue” means the amount actually collected by DRINKS from a Qualified Lead during the Commission Period for applicable DRINKS Product(s), net of all discounts, credits, chargebacks, refunds, taxes payable on such sales, and collection costs (e.g., in the event the Qualified Lead does not make timely payment of fees owed to DRINKS pursuant to a DRINKS Contract).
    • “Prospective Referral” means a prospective DRINKS Product customer identified by Referring Party to DRINKS through submission of a Lead Form as specified by DRINKS. A Prospective Referral must include complete and accurate information, and is not eligible for a Referral Fee unless and until it is deemed by DRINKS to be a Qualified Lead.
    • “Qualified Lead” means a Prospective Referral that DRINKS has confirmed satisfies all of the criteria set forth in Section 2.2, below.
    • “Referral Fee” means the fee payable by DRINKS to Referring Party in exchange for a Qualified Lead, pursuant to the terms set forth in the Fee Schedule.
    • “Lead Form” means the online form submitted by Referring Party to DRINKS for the purpose of identifying a Prospective Referral. A Lead Form must be complete, with all required fields provided with complete information, in order for the Prospective Referral to be eligible to be a Qualified Lead.
    • “Partner Program” means the DRINKS referral program to generate prospective client leads for one or more DRINKS Products, pursuant to the terms and conditions set forth in this Agreement.
    • “Term”, “Initial Term” and “Renewal Term” shall have the meanings ascribed to each of these terms in Section 6.1, below.
    • “Time Stamp” means the date and time that DRINKS receives a Lead Form submitted by the Referring Party.

 

  1. Partner Program and Qualification Process.
    • Referring Party may submit Prospective Referrals to DRINKS in accordance with the terms and conditions of the DRINKS Partner Program as set forth in this Agreement, and as directed by DRINKS. Prospective Referrals must be complete and accurate and provide all of the identifying information specified by DRINKS in the Lead Form. Failure to provide a complete Lead Form may result in the rejection of the Prospective Referral by DRINKS.
    • Only complete Lead Forms will be reviewed by DRINKS to determine whether the Prospective Referral is a Qualified Lead. Only Qualified Leads are eligible for a Referral Fee. A Qualified Lead is a Prospective Referral that satisfies all of the following criteria, as determined in DRINKS’ sole discretion:
  • is submitted to DRINKS in the manner specified by DRINKS;
  • has not been received by DRINKS from Referring Party or any other source at any time prior to the Time Stamp on the Lead Form;
  • is not currently, nor has been at any time in the past, a customer of DRINKS, and is not in active negotiations with DRINKS nor in the DRINKS sales pipeline as of the date and time of the Time Stamp;
  • enters into a DRINKS Contract within six (6) months of the Time Stamp as a direct result of the referral from you;
  • has made all payments as due and in full to DRINKS, in accordance with the terms and conditions of the Prospective Referral’s contract with DRINKS; and
  • complies with all Law and all of the terms of its contract with DRINKS and is not involved in any activity that is or could be damaging to the reputation or business of DRINKS.
    • No Obligation. Nothing in this Agreement obligates Referring Party to submit Prospective Referrals to DRINKS, and Referring Party acknowledges and agrees that all such submissions are voluntary and that the Partner Program is nonexclusive. Nothing in this Agreement shall obligate DRINKS to offer or sell any services to, or consummate any transaction with, any Prospective Referral. DRINKS has the right to decline the provision of services to any Prospective Referral without any liability or obligation to pay compensation to Referring Party, and may terminate the Partner Program at any time with or without notice to Referring Party.

 

  1. Responsibilities of Referring Party.
    • When promoting the DRINKS Products to potential customers, Referring Party represents, warrants and covenants to DRINKS that it will (a) use best efforts to do so in a professional and ethical manner and in compliance with all Law; (b) not engage in any deceptive, misleading, illegal, or unethical practices; (c) not make any representations or warranties concerning DRINKS Products, except as expressly set forth in marketing materials or other guidance that may be furnished by DRINKS; (d) conduct business in a manner that reflects favorably at all times on the good name, goodwill, and reputation of DRINKS; and (e) cause all of its sales representatives and agents to comply with the foregoing. Referring Party will indemnify and defend DRINKS from and against all damages, liabilities, costs, and expenses, including attorneys’ and experts’ fees and expenses, that DRINKS may incur as the result of any action brought against DRINKS and arising out of the acts or omissions of Referring Party or its sales representatives or agents in breach of this Section 3.1.
    • Referring Party shall refrain from making any representations, warranties, or guarantees to potential customers, including Prospective Referrals, with respect to the specifications, features, or capabilities of any DRINKS Products that are deceptive, misleading or otherwise inconsistent with the information provided by DRINKS with respect thereto.  
    • Referring Party shall provide support and facilitate communication between DRINKS and the Prospective Referral until such time as DRINKS is able to determine whether the Prospective Referral is a Qualified Lead or not.

 

  1. Referral Fees and Payment.
    • You must provide all applicable paperwork and tax documentation to DRINKS in order to receive payment of a Referral Fee. You are responsible for any and all taxes associated with the receipt of the Referral Fee.
    • If DRINKS determines a Prospective Referral you submit is a Qualified Lead, you will be notified in writing by DRINKS and you will be eligible to receive a Referral Fee for each Qualified Lead. All Referral Fees shall be paid according to the terms set forth in the Fee Schedule.
    • DRINKS will provide the Referring Party with a statement showing the calculation of the Referral Fee for each Qualified Lead when the Referral Fee is paid.
    • DRINKS reserves the right to withhold payment if it suspects any fraudulent activity or breach of this Agreement by you.

 

  1. Data Protection and Confidentiality.

The Parties acknowledge and agree that the information submitted in the Lead Form, all Prospective Referrals and all Qualified Leads shall be deemed the Confidential Information of DRINKS. The Parties agree: (i) not to disclose Confidential Information to any third party; and (ii) to guard and secure Confidential Information using commercially reasonably measures. If the Referring Party is required by law, court order or other governmental or regulatory authority to disclose any Confidential Information, it shall give DRINKS prompt written notice of such requirement before the disclosure in order to allow DRINKS, at its sole expense, to seek an appropriate protective order or procedure if it elects to do so. If DRINKS does not obtain an appropriate protective order or procedure by the time such disclosure is reasonably required or requested, or if DRINKS, in writing, waives compliance with the confidentiality and non-disclosure provisions of this Agreement, the Referring Party shall be permitted to make such disclosure without liability hereunder.

  1. Term and Termination.
    • The initial term of this Agreement shall commence on the Effective Date and shall continue for a period of twelve (12) months (the “Initial Term”) unless terminated earlier by DRINKS upon no less than thirty (30) days’ advance written notice. The Initial Term will automatically extend for an additional twelve (12) month period (each, a “Renewal Term”) unless either Party sends the other Party a notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term, as the case may be. The Initial Term and any Renewal Terms shall be collectively referred to herein as the “Term.” Notwithstanding anything to the contrary herein, if the Commission Period as defined in the Fee Schedule extends beyond the Term, then the Term shall be automatically extended to the limited extent necessary to expire on the same date as the last day of the Commission Period.
    • Upon expiration or termination of this Agreement for any reason: (i) a Qualified Lead introduced by Referring Party prior to the effective date of such expiration or termination shall remain a Qualified Lead and shall remain subject to the Referral Fee payment for the duration of the Commission Period. All ; (ii) all Prospective Referrals pending at the time of expiration or termination of this Agreement shall be deemed not qualified and shall not be eligible for Qualified Lead status or payment of Referral Fees.

 

  1. Intellectual Property.

Referring Party acknowledges that DRINKS and its licensors own all right, title and interest in and to the DRINKS Products, and all intellectual property and good will related thereto or vested therein. Nothing in this Agreement gives Referring Party any right, title or interest in or to the DRINKS Products or any associated intellectual property or good will.

 

  1. Disclaimer of Warranties.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS, STATUTORY OR IMPLIED, WITH RESPECT TO ANY TECHNOLOGY, GOODS, PRODUCTS, SERVICES, RIGHTS OR OTHER SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, INTEGRATION, PERFORMANCE AND ACCURACY, AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE WITH RESPECT TO ANY AND ALL OF THE FOREGOING.

 

  1. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL DRINKS OR ITS AFFILIATES OR SUBSIDIARIES HAVE ANY LIABILITY TO THE REFERRING PARTY OR ITS AFFILIATES OR SUBSIDIARIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS OR REVENUE OR FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, RELIANCE OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND HOWEVER CAUSED, WHETHER FROM BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE (AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). THE MAXIMUM AGGREGATE LIABILITY OF DRINKS AND ITS AFFILIATES AND SUBSIDIARIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL REFERRAL FEES PAID OR PAYABLE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OUT OF WHICH THE LIABILITY AROSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS SECTION 9, DRINKS SHALL NOT BE LIABLE TO THE REFERRING PARTY TO THE EXTENT SUCH LIABILITY WOULD NOT HAVE OCCURRED BUT FOR THE REFERRING PARTY’S FAILURE TO COMPLY WITH THE TERMS OF THIS AGREEMENT.

 

  1. General Provisions.
    • This Agreement shall be governed by, and construed in accordance with, the laws of the State of California, without giving effect to principles of conflict of laws. This Agreement contains the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, of the Parties with respect to the subject matter hereof, and may only be amended, modified, or supplemented by an agreement in writing signed by each Party. No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving.
    • No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
    • It is understood that the Referring Party is acting as a finder only and is an independent contractor, not an employee, agent or partner of, nor a joint venturer with, DRINKS. The Referring Party shall not have any authority to enter into any agreements, obligations or commitments on behalf of DRINKS, or to negotiate the terms of Prospective Referrals’ agreements with DRINKS. The relationship between the Parties is non-exclusive and Referring Party acknowledges that DRINKS may enter into referral agreements or other similar arrangements with other parties and that Referring Party shall have no rights under such agreements or to any fees for customers referred to DRINKS by others or identified by DRINKS itself. The Referring Party may not assign or transfer this Agreement, or delegate its obligations under this Agreement, without DRINKS prior written consent.
    • Upon expiration or termination of this Agreement for any reason, the following sections shall survive such expiration or termination, together with any other terms which, by its nature, is intended to do so: Sections 1 (Definitions), 2.2 and 2.3 , 3.1, 5 (Data Protection and Confidentiality), 6.2, 7 (Intellectual Property), 8 (Disclaimer of Warranties), 9 (Limitation of Liability), and 10 (General Provisions).
    • All notices or other communications required or permitted under this Agreement must be in writing. Such notices may be delivered personally or sent by a recognized overnight delivery service, provided that receipt of delivery is confirmed. Notices to DRINKS should be sent to 1125 E. Broadway #173, Glendale, CA 91205, Attn: Legal Department. Notices to Referring Party shall be sent to the address set forth in the Referring Party’s Partner Program application form, to the attention of the person submitting the application form. A notice will be considered effectively given at the time of personal delivery, or at the time of confirmed receipt in the case of delivery by overnight service.