I. SPARK FACTORY & AFFILIATE PARTNERSHIP AGREEMENT
This Partnership Agreement, made and entered into by and between Spark Factory™ located at 4555 Corporation Lane Suite 275, Virginia Beach VA 23451 (hereinafter referred to as “Spark Factory”, or "Company"), and Located at , is to evidence the following:
II. RECITALSSpark Factory is an accomplished marketing & advertising agency focused on increasing revenue and expanding business growth in a wide variety of industries. Spark Factory is led by a highly experienced management team, providing visionary strategy and support for their in-house stable of experts. Spark Factory provides digital marketing and advertising, Google, Facebook, Instagram advertising for an plethora of industries including restaurant marketing and advertising. Restaurant ordering and takeout software. For the purposes of this agreement, Affiliate desires to refer clients to Spark Factory for a commission.
A. WHEREAS, in consideration of mutual promises, Spark Factory and Affiliate desire to enter into this Agreement (the “Contract”) and agree to abide by and comply with fulfilling all respects of the covenants herein set forth; and
B. WHEREAS, as a consequence of this agreement, Spark Factory and Affiliate may become deeply engaged with each other’s business methods, including, but not limited to, unique technical services, management practices, business techniques, clients and their cases; and
C. WHEREAS, it is mutually agreed, while engaged with each other, Affiliate shall not enter into agreements with other companies or organizations which compete with the business of Spark Factory.
D. IN ADDITION, Both Spark Factory and Affiliate would be irreparably injured, and the value of and the good shall of either Spark Factory or Affiliate would be irreparably damaged, if either Spark Factory or Affiliate were to disclose (otherwise than as permitted in this agreement) any of the confidential information concerning Spark Factory’s or the Affiliate’s business which either Spark Factory or Affiliate has acquired about the other, or shall acquire about the other, as a result of this agreement, or if either was to solicit the clients in competition with either Spark Factory or Affiliate, or if either was otherwise to impair the good shall of Spark Factory or Affiliate; and
E. WHEREAS, Both Spark Factory and Affiliate acknowledge and agree that Spark Factory and Affiliate needs appropriate safeguards to protect both its investments in their business, relationships, as well as to maintain the confidentiality of the information held within; and
F. WHEREAS, Both Spark Factory and Affiliate desire the other to perform such duties required under the Contract subject to and in accordance with the terms and conditions hereinafter set forth.
DEFINITIONS, The following terms in this Agreement, shall have the respective meanings described to them below, although the Parties recognize that the names of products, programs and services may change from time to time:
a. “Account” means the specific Affiliate account within the Program where sales commissions are tracked, reported, and calculated.
b. “Company Marketing Materials” or “Marketing Materials” shall mean all promotional materials created, owned, authorized, and provided by Spark Factory to Affiliate, for the sole purpose of promoting Spark Factory’s Services and/or Mobile Online Ordering for Restaurants, Restaurant Loyalty Programs, .
c. “Company Website” shall mean and refer to https://sparkfactory.io and/or https://sparkrestaurants.com any additional or replacement website designated by the Company.
d. “Company Product” or “Company Products” shall mean Mobile Online Ordering for Restaurants, Restaurant Loyalty Programs, Social Media Marketing Programs etc. The Company authorizes Affiliate to promote under this Agreement. Affiliate acknowledges that the content of the Company’s Products may be changed from time to time by Company in its sole discretion.
e. “Confidential Information” shall mean all information provided by one Party to the other which is not generally published by the providing Party, including but not limited to: financial information, marketing plans, and customer lists of the providing Party and other information transmitted or delivered which would be expected under reasonable circumstances to be held private between the Parties and not disclosed, including the terms of this Agreement.
f. “Gross Revenue” shall mean all revenue received from service fees from Spark Factory’s Products
g. “Net Revenue” shall mean Gross Revenue, less any refunds, taxes, and other expenses related to the sale. But not the advertising costs or food costs.
h. “Sales Commission” shall mean a percentage of Net Revenue from sales produced by Affiliate through its efforts to customers procured by Affiliate. Sales Prices shall be set by Company for each of its product lines and adjusted from time to time at Company’s sole discretion.
i. “Proprietary Rights” shall mean all rights held by a Party in that Party’s products, services, and programs and confidential information, including, without limitation, copyrights, authors’ rights, trademarks, service marks, patent rights, trade names, know-how and trade secrets, software source codes and proprietary algorithms irrespective of whether such rights arise under U.S. intellectual property, unfair competition or trade secret laws.
j. “Customer” shall mean a person who purchases one or more of Spark Factory's products via service fees and/or loyalty programs, social media
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth, Spark Factory and Affiliate hereby agree as follows:
A. SERVICES:1. Affiliate: During the term of this Contract, Affiliate shall make best efforts to leverage Affiliate’s brand, credibility & contacts in the Food & Beverage industry to market and help promote Spark Factory’s "Mobile Online Ordering for Restaurants, Restaurant Loyalty Programs", “Social Media All-in-One Plans,” “Exclusive Lead Programs,” “Google Shopping,” and “Content Marketing (SEO)”, etc.
2. Affiliate: During the term of this Contract, Spark Factory and/or Spark Restaurants authorize Affiliate to use Spark Factory’s marketing material to promote the company.
3. Spark Factory: During the term of this Contract, Spark Factory shall sell Spark Factory’s "Mobile Online Ordering for Restaurants", "Restaurant Loyalty Programs", “Social Media All-in-One Plans,” “Exclusive Lead Programs,” “Google Shopping,” and “Content Marketing (SEO)” programs
B. PAYMENTS:a. Each purchase of a Spark Factory’s programs by the Affiliate referral shall be paid for by the customer, not Affiliate.
b. Each payout to Affiliate, in accordance to the agreement herein, shall be contributed to Affiliate by Spark Factory within 15 days of the following month. Meaning all sales contributed by Affiliate via this program from March 1, 2021, to July 31, 2020, shall be accounted for and paid out via ACH payment (3 days processing) within 15 days thereafter.
Payout of Affiliate Commission on sales made to its procured Customers, to be paid by the fifteenth (15th) day of the month following the month in which the Company receives the Gross Revenue therefor. By way of explanation/example only, the Sales Commission on sales made during the month of March shall be paid on by the fifteenth (15th) day of April. The company may provide Affiliate a Form 1099 by February 15th for sales commissions earned the prior year.
i. Respect the privacy of Affiliate and not disclose to third parties any information concerning Affiliate, if Affiliate specifically expresses its desire for anonymity.
j. Provide its services with due care, skill, and ability.
7. Obligations of Affiliate. During the term of this Agreement, Affiliate shall:
a. Endorse the Company and market Company’s Products to Affiliate’s prospects, using the Spark Factory/Spark Restaurants websites.
C. TERM:1. This Contract and the relationship hereunder shall be for a minimum term of 12 months commencing as of , herein referred to as the “initial term.”
2. After the “initial term” both parties have the right to evaluate this entire contract and if desired renegotiate terms. Silence (if no renegotiation occurs after the initial term) means this contract shall automatically renew as the “renewal term” for one year (the initial term, together with any and all renewal terms, are hereinafter collectively referred to as the “Contract Period”), and shall be automatically renewed from year to year unless either Spark Factory or Affiliate terminate the agreement.
3. Either Spark Factory or Affiliate may terminate this agreement, in writing, with 30 days’ notice, for any reason.
4. Spark Factory shall continue to honor its commitment to making donations to Affiliate, in accordance with the agreements herein, based upon purchases of any Spark Factory’s programs which occur prior to termination of this agreement and based upon any new agreements made up to 90 days after the termination of this agreement. This is to take into account new contracts established between Veterans and Spark Factory as a result of Affiliate’s advertising, marketing, and/or direct mail programs which Affiliate may have initiated prior to termination of this agreement.
D. COVENANTS OF NON-DISCLOSURE1. During the term of this Contract, Affiliate and Spark Factory shall both use reasonable efforts to further and promote both Spark Factory’s business and Affiliate’s fundraising efforts.
2. Neither Affiliate nor Spark Factory shall, at any time during the term of this Contract, or thereafter, directly or indirectly, use for Affiliate’s or Spark Factory’s own benefit or purposes for the association, or business organization, or disclose (except in the performance of Affiliate’s or Spark Factory’s duties hereunder) in any manner to any person, firm, partnership, association, or business organization, any trade secrets, information, know-how, or knowledge relating to the other’s organization, to include technical services, business methods and techniques, market development programs, revenues, costs, management practices, manuals contracts, documents, designs, plans or partner’s belonging to, or relating to the affairs of either Affiliate or Spark Factory except where required in good faith to transact the business of the Affiliate and the Spark Factory during the term of this Contract; and
3. To provide to either Affiliate or Spark Factory, at either’s request and in any event within three (3) days after the termination of Contract, in good condition, reasonable wear and tear excepted, all documentation and records which are the property of the other and any and all copies thereof, including, but not limited to, all manuals, promotional and instructional materials, and similar aids and equipment, all reports as well as all equipment and other property in the other’s hands or under the other’s control at the time of the termination of Contract hereunder; and
4. To keep in strict confidence all trade information, technical services, management practices, business methods and techniques, lists, trade secrets, case information - especially those still active, and other confidential information concerning Affiliate’s or Spark Factory ‘s business, clients, and its methods of doing business.
E. NON-DISPARAGEMENT:1. Affiliate and Spark Factory agree they shall not disparage one another during the period covered by this agreement and beyond, regardless of when, or who terminates the agreement.
2. For purposes of this section, “disparage” means any negative statement, whether written or oral, or images, to include, but not limited to posts to social media (e.g., Facebook, Twitter, LinkedIn, Instagram, etc.) or comments during media engagements (e.g., interviews via radio, TV, newspaper, etc.) by Affiliate’s officers, directors, or employees about Spark Factory or by Spark Factory about Affiliate, its officers, directors, employees.
3. Both Parties agree and acknowledge this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in Affiliate and Spark Factory refusing to enter into this Agreement.
4. Both parties agree that if a breach were to occur, it would be difficult to determine actual damages. Based on what the parties presently know, they agree that $10,000.00 is a reasonable estimate of the damages that would accrue if a breach occurred in the future. Both parties agree that the amount of liquidated damages is fair and reasonable.
F. ARBITRATION. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be in Virginia Beach, VA.
G. GOVERNING LAW. This Agreement shall be construed in accordance with the applicable laws of the Commonwealth of Virginia.
H. MISCELLANEOUS:1. This Contract represents the entire Contract between the parties hereto and supersedes any other Contract’s, representations or understandings, written or oral, between the parties.
2. This Contract may be amended from time to time as the parties’ desire so long as such amendments are in writing and executed by the parties hereto.
3. The parties agree that this agreement may be electronically signed. The parties agree that the electronic signature appearing on this document is the same as handwritten signatures for the purpose of validity, enforceability, and admissibility.
V. SIGNATURESIN WITNESS WHEREOF, the parties hereto have set their hands the day first written below through digital signatures.
Signed Date: April 14, 2021
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