THE HEDGESTONE GROUP, LLC

AFFILIATE BUSINESS SALES CONSULTANT PROGRAM AGREEMENT

Affiliate agrees to the HedgeStone.com website Terms Of Service and Privacy Policy.

This Affiliate Business Sales Consultant Program Agreement (hereinafter referred to as the “Agreement”) is effective once the Parties (defined below) have electronically and validly executed/signed this Agreement (the “Effective Date”). This Agreement is by and between The HedgeStone Group, LLC, a company governed under the laws of Delaware, USA, having its registered agent office located at LegalCorp Solutions, LLC, 1221 College Park Drive, Suite 116, Dover, DE 19904], USA (“Company”), and each Affiliate (defined below), hereinafter referred to together as the “Parties” and individually as a “Party”.

RECITALS

Whereas, Company is in the business of providing business brokerage services and acts as third-party intermediary between buyers and sellers of businesses within the USA.

Whereas, under this Agreement,Company

(i) offers affiliates/individuals/entities (“Affiliate(s)”) with the opportunity to participate in and become a member of Company’s business sales consultant network (“Affiliate Program”),

and

(ii) enables such Affiliates, who are registered members of the Affiliate Program, to driver/refer leads to promote and market Company’s business brokerage services in exchange for agreed consideration,

and

(iii) provides paying Affiliate Program participants with access to a number of benefits, including but not limited to:
– Company’s exclusive guide, namely ‘Getting Seller Leads Fast’,
– Company’s portal, available at HedgeStone.com  (“Portal”) to submit and track leads made by Affiliate,
– real time status updates on all leads submitted by Affiliate,
– phone and email support,
– unlimited access to Company’s proprietary broker training course(s), which includes pdf guides and video training tutorials,
– Company’s two-part video training series, namely, ‘Finding Prospects and Generating Leads Online’,
– Company’s twelve-part podcase series, namely, ‘Pro Brokering Strategies’, valued at $1,295.00,
– Communication with Company’s network of qualified brokers, and
– Annual plan subscribers receive custom professional business cards included, business cards are available for purchase by monthly plan subscribers. Business cards are not available to non-paying members.

(collectively the “Services”).

And Whereas, Affiliate wishes to participate in and become a registered member of Company’s Affiliate Program, and Company agrees to provide the Services (as defined below) to Affiliate subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the above recitals and the mutual promises and conditions contained in this Agreement, the Parties agree as follows:

1. EXCLUSIVE APPOINTMENT

1.1 Affiliate acknowledges and agrees that Affiliate’s participation/membership in Company’s Affiliate Program and use of the Services are subject to Affiliate’s execution and compliance with the terms and conditions of this Agreement.

1.2 Exclusivity. Affiliate hereby appoints Company on an exclusive basis, and Company accepts such appointment on the terms and conditions of this Agreement, to provide the Services. The appointment of Company on an exclusive basis shall mean that Affiliate shall not engage with, solicit, seek, encourage or appoint, directly or indirectly, another business offering or selling similar services to Company’s business for the Term (defined below) and for a period of five (5) years from the date of termination of the Agreement.

1.3 However, Affiliate acknowledges, understands and agrees that the provision of the Services by Company to Affiliate shall be undertaken on a non-exclusive basis. As such, Company reserves the right to (i) register other affiliates/individuals/entities on the Affiliate Program, and (ii) provide other affiliates/individuals/entities with access to and use of the Services.

SERVICES

2.1 Subject to Affiliate’s compliance with this Agreement, Company hereby grants to Affiliate a non-exclusive, non-transferable, limited, non-assignable, non-sublicensable, and revocable right to access and (i) participate in Company’s Affiliate Program, and (ii) use the Services for the Term (defined below) of this Agreement.

2.2 Affiliate acknowledges and understands that on registering Affiliate’s Account (defined below) and making payment of the Registration Fee (defined below), Affiliate shall be able to access and use the Services. Company shall reimburse the Registration Fee to Affiliate upon Affiliate’s first referred lead concluding in a successful business sale transaction. Company shall make payment to Affiliate of such reimbursement of the Registration Fee together with Affiliate’s subsequent Commission (defined below).

2.3 Affiliate acknowledges that Company may from time to time, in Company’s sole discretion, offer Affiliate the opportunity to join Company as a business broker, with the possibility of earning higher commission, receiving additional training and support and access to buyer/seller leads. In the event that Affiliate is selected to join Company as a business broker, Affiliate further acknowledges that Affiliate shall be required to pay Company a monthly desk fee. For the avoidance of doubt, Company does not provide any guarantee that Affiliate will be selected to join Company as a business broker.

2.4 In promoting and marketing Company’s business brokerage services, to potential buyers and sellers of businesses, Affiliate shall not:

(i) spam or use unsolicited commercial emails and postings;

(ii) conceal or misrepresent Affiliate’s identity, domain name, website, or email address;

(iii) provide incentives (including but not limited to cash, loyalty points or other monetary rewards) to potential leads/buyers/sellers, with the intention of increasing Affiliate’s Commission (defined below); and

(iv) not frame Company’s Website and Portal inside another website for any purpose.

2.5 Fraudulent Transactions and Activities. Should Company have any reason to reasonably believe that Affiliate is conducting fraudulent transactions and/or is associated with fraudulent activity, Company may, in its sole and exclusive discretion:

(i) reject payment of any Commission (defined below) derived from such fraudulent transaction/activity to Affiliate;

(ii) terminate this Agreement without liability to Affiliate;

(iii) require Affiliate to return/reimburse any Commission (defined below) paid by Company to Affiliate, which Commission (defined below) is derived from any fraudulent transaction/activity conducted by Affiliate;

(iv) reject, suspend or cancel any traffic/lead which has been generated by promotional methods which in the opinion and/or discretion of Company is deemed to be not suitable and appropriate for any reason; and/or

(v) terminate any Affiliate’s participation in Company’s Affiliate Program, in Company’s sole discretion, by providing Affiliate with written notice. Company shall remove Affiliate from the Affiliate Program within twenty-four (24) hours of such written notice.

2.6 Affiliate acknowledges and agrees that Company shall not be held liable for any third-party legal action(s), against Affiliate, arising from fraudulent traffic/leads directed, by Affiliate, to Company’s website, available at https://www.hedgestone.com/ (“Website”) and Portal.

2.7 When using the Services, Affiliate agrees to access and use the Services only for lawful purposes, as such Affiliate will not:

  1. use any material or information, including images or photographs, which are made available through the Services in any manner that infringes any copyright, trademark, patent, trade secret, or other proprietary right of Company;
  2. download, copy, sell or give away the Services and any proprietary training materials/courses available on the Portal and as provided by Company, that Affiliate knows, or reasonably should know, cannot be legally reproduced, displayed, performed, and/or distributed in such manner;
  3. falsify or delete any copyright management information, such as author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained on the Website, Portal and Services made available to Affiliate;
  4. use, download or otherwise copy, or provide (whether or not for a fee) to an individual or entity any directory of registered users of the Services, any information and/or any portion thereof;
  5. upload files that contain malicious code, trojan horse, cancel bots, corrupted files, or any other similar software or programs that may damage the operation of Company’s and/or a third party’s computer or property;
  6. send or store infringing, obscene, threatening, abusive, defamatory, discriminatory or otherwise unlawful or tortious material, including material that violates privacy rights;
  7. upload, post, reproduce, or distribute any information, software, or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights;
  8. sell, resell, rent, lease, loan, supply, publish, distribute, redistribute or sub-license the Portal and Services to a third party;
  9. attempt to breach the security and/or authentication measures of the Portal and Services.
  10. violate any applicable laws or regulations; and
  11. use the Website, Portal and Services for any other commercial uses or for the benefit of any third party including but not limited to the (a) sale of the Services or any associated content, and (b) solicitation of business in the course of trade or in connection with a commercial entity.

2.8 Use of Company’s Trademarks in Online Advertising. EXCEPT AS PERMITTED HEREIN, AFFILIATE SHALL NOT BE AUTHORIZED TO (A) USE COMPANY’S TRADEMARK, NAME, OR ANY OF COMPANY’S OTHER INTELLECTUAL PROPERTY, INCLUDING WITHOUT LIMITATION, ANY TRAINING MATERIALS, CONTENT AND INFORMATION (COLLECTIVELY, “COMPANY’S TRADEMARK(S)”) (OR ANY VARIATIONS OR MISSPELLINGS THEREOF OR OTHER TERM(S) CONFUSINGLY SIMILAR TO ANY OF THE FOREGOING) WITHOUT COMPANY’S EXPRESS PRIOR WRITTEN CONSENT; (B) USE COMPANY’S TRADEMARKS IN A DOMAIN OR WEBSITE NAME, IN ANY BIDS FOR KEYWORDS, IN ANY SEARCH ENGINE ADVERTISING (PAID OR OTHERWISE), IN ANY METATAGS, GOOGLE ADWORDS (OR SIMILAR PROGRAMS AT OTHER SEARCH ENGINES), ADVERTISING, SEARCH TERMS, CODE, OR OTHERWISE; (C) ACT IN ANY WAY THAT CAUSES OR CREATES OR COULD CAUSE OR CREATE ANY CONFUSION OVER THE USE OF COMPANY’S TRADEMARKS ON THE INTERNET OR IN ANY SEARCH ENGINE ADVERTISING. AFFILIATE’S USE OF COMPANY’S TRADEMARKS IN ANY MANNER, OTHER THAN AS EXPRESSLY PERMITTED UNDER THIS AGREEMENT  SHALL CONSTITUTE UNLAWFUL INFRINGEMENT OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS (DEFINED BELOW), AND MAY SUBJECT AFFILIATE TO CLAIMS FOR DAMAGES (INCLUDING POTENTIAL TREBLE DAMAGES FOR KNOWING OR WILFUL INFRINGEMENT), AND THE OBLIGATION TO PAY COMPANY’S LEGAL FEES AND COSTS IN CONNECTION WITH ANY ACTION OR PROCEEDING IN WHICH COMPANY SEEKS TO ENFORCE COMPANY’S RIGHTS UNDER THIS AGREEMENT  OR WITH REGARD TO ANY OF COMPANY’S INTELLECTUAL PROPERTY RIGHTS (DEFINED BELOW).

2.9 Affiliate agrees to not, at any time solicit, entice away or offer employment to or endeavour to solicit, entice away or offer employment, any employee, contractor, client, buyer, seller, vendor or agent of Company. Failure to adhere to this Section may result in the termination of this Agreement in accordance with Section 12 (Term and Termination).

3. REGISTRATION ON AFFILIATE PROGRAM

3.1 To be able to use the Services, and register for Company’s Affiliate Program, Affiliate agrees that they are above the age of 18, and upon selection of a paid plan shall be required to pay Company the applicable annual or monthly registration fee (“Registration Fee”) and must register on the Company’s Portal by providing all required information which shall include but not be limited to the Affiliate’s email, full name, contact information, billing and credit card information, company name, and tax information.

An account shall thereafter be opened by Company, in its sole discretion, for Affiliate on the Portal (“Affiliate’s Account”) and a unique ID assigned to Affiliate by Company. Affiliate’s Account may only be registered and used by one (1) single entity or individual. Affiliate may not access any third party’s account or authorize any third party to access Affiliate’s Account on Affiliate’s behalf. Affiliate acknowledges and agrees that Company may in its sole discretion (i) reject the registration of Affiliate’s Account for any or no reason, and (ii) deny Affiliate with access to the Services, Portal and Affiliate Program for any or no reason without any obligation for Company to disclose or explain the reason to Affiliate. Affiliate agrees that, upon creation of their account, HedgeStone is under no obligation to delete their account, even after cancellation of affiliate’s paid subscription, or cancellation of this agreement by either party, or upon request by affiliate.

Affiliates who have not paid a registration fee may be eligible to refer other affiliates into this affiliate program, for a commission equal to 25% of the registration fee paid by a referred affiliate, at the sole discretion of The Company. Affiliate shall be provided with coded links containing a 30-day tracking cookie. The registration fee may vary depending on the plan selected or defaulted to, and may include either an annual or monthly, or free subscription option. Commission percentages may vary depending on the plan selected or defaulted to. All affiliate program participants are defaulted to the Free Plan, and must request to upgrade to a paid plan, in order to qualify for higher commission percentages, in addition to accessing training materials and live support.

3.2 Affiliate agrees to:

  1. provide true, accurate, current and complete information about Affiliate as prompted by Company’s registration process on the Portal; and
  2. maintain and promptly update the information provided during registration to keep it true, accurate, current, and complete at all times.

If Affiliate provides any information to Company that is untrue, inaccurate, outdated, or incomplete, or if Company has reasonable grounds to suspect that such information is untrue, inaccurate, outdated, or incomplete, Company may close Affiliate’s Account on the Portal, and/or (ii) deny Affiliate the ability to access and use the Services.

3.4 Affiliate may indicate, during the registration process, to Company Affiliate’s choice of Affiliate Account username and password to be used as login credentials to access Affiliate’s Account (“Login Credentials”). Affiliate shall be solely responsible for (i) maintaining the confidentiality of Affiliate’s Login Credentials; and (ii) any and all activities which occur under Affiliate’s Account. Affiliate agrees to notify Company immediately of any unauthorized use of Affiliate’s Account or any other breach of security. Company shall not be liable for any loss that Affiliate may incur as a result of any third party using Affiliate’s Login Credentials and/or accessing/using Affiliate’s Account either with or without Affiliate’s knowledge. However, Affiliate may be held liable for losses incurred by Company due to any third party using Affiliate’s Login Credentials and/or Affiliate’s Account. Affiliate acknowledges and agrees that Affiliate may not (a) use Affiliate’s Account of another affiliate registered on the Portal without the express permission of such affiliate account holder, and further acknowledges that Affiliate’s Account is for use by one user only, and (b) impersonate any individual or entity, or falsely state or otherwise misrepresent any affiliation with an individual or entity when accessing the Portal and when using the Services.

4. RESPONSIBILITIES OF THE PARTIES

4.1 Affiliate’s Responsibilities.  Subject to the terms and conditions of this Agreement, Affiliate agrees:

  1. to provide Company with all necessary cooperation in relation to this Agreement;
  2. to use the Portal and Services only for the purposes provided under this Agreement;
  3. to refer, direct and submit legitimate leads via Company’s Portal;
  4. that Affiliate shall be solely responsible for maintaining and updating Affiliate’s information on the Portal;
  5. that Affiliate shall be solely responsible for any and all costs and expenses of any advertising material(s) used by Affiliate (other than the materials and content provided by Company);
  6. that Affiliate shall be solely liable and responsible for Affiliate’s use of the Affiliate Program, Portal and Services;
  7. to provide Company with accurate and complete content and information, so as to assist Company to successfully provide Company’s business brokerage services to potential buyers/sellers and perform the Services under this Agreement;
  8. to provide Company with all necessary access to such information as may be required by Company in order for Company to comply with all applicable laws and regulations with respect to its activities under this Agreement;
  9. to obtain and maintain all necessary licences, approvals and consents, and comply with all relevant legislation in relation to the Services;
  10. to comply with all applicable local, state, national and international laws in connection with Affiliate’s use of the Services, including laws pertaining to data privacy, international communications, and the transmission of technical or personal data. Affiliate acknowledges and understands that Company shall have no control over the content of the information transmitted by Affiliate through the Portal and Services;
  11. safeguard all electronic communications, including but not limited to business information, account registration, financial information, and all other data of any kind contained within emails or otherwise entered by Affiliate electronically while accessing and using the Portal and Services; and
  12. take commercially reasonable efforts to (a) promptly notify Company of any unauthorized access to or use of the Portal and Services, and (b) cooperate with and assist Company in preventing any such unauthorized access or use of the Portal and Services.

4.2 Restrictions. Affiliate shall not:

  1. represent Affiliate as an agent or representative of Company for any purpose;
  2. Affiliate shall not create or design Affiliate’s website (if applicable)  or any other website that Affiliate, operates or controls, which resembles Company’s Portal;
  3. take any action which might be deemed confusing, misleading or deceptive to potential leads being directed to Company’s Website;
  4. breach any laws, including but not limited to privacy, intellectual property and spam laws;
  5. participate in or give effect to any form of cookie stuffing and domain forwarding (i.e., use a domain and set such domain to automatically forward to Company’s Portal using Affiliate’s link);
  6. engage in any conduct that does not meet Company’s standards of ‘fair play’ at Company’s discretion including but not limited to attempted, apparent or actual fraud, generating non-genuine transactions, creating non-genuine leads, confusing sellers and/or buyers;
  7. license, sublicense, sell, resell, rent, lease, transfer, distribute or otherwise similarly exploit the Services or Company’s Affiliate Program,
  8. copy, create a derivative work of reverse engineer, reverse assemble, disassemble, or decompile the Services, or any part thereof or otherwise attempt to discover any source code of any software provided by Company to Affiliate, or modify the Services;
  9. interfere with any tracking code used to track actual sales, with the intention of manipulating Company’s tracking system to track more sale transactions than the actual sales; and
  10. create a service offering (a) similar to or based on Company’s Services, and (b) competing with such Services provided by Company to Affiliate hereunder.
  11. Submit any leads for which the business is already under a service contract with another business broker or brokerage. Co-brokered leads are not accepted in this program and will be marked as unqualified.

4.3 Affiliate agrees to indemnify and hold Company harmless from any third party legal actions that may arise as a result of any action or inaction Affiliate takes with regards to the Services, Portal and any training material/content or information made available by Company.

4.4 Affiliate acknowledges and understands that laws concerning business brokering vary from State to State and as such, Affiliate shall be solely responsible for complying with any and all applicable laws.

4.5 Affiliate agrees to not use the Affiliate’s participation in the Affiliate Program  for any other purpose except for the promotion of Company’s products and business brokering services, and as stipulated under this Agreement.

4.6 Company’s Responsibilities. Subject to the terms and conditions of this Agreement, Company agrees to provide Affiliate with access to the Services and participation in the Affiliate Program in accordance with the terms and conditions of this Agreement. Company reserves the right to deny Affiliate access to the Affiliate Program and Services at any time (a) if Company deems, in its sole discretion, that Affiliate fails to comply with this Agreement, any applicable law, or (b) in order to protect Company’s rights, property, and interests.

4.7 Each Party undertakes to not (i) take any action that will or is reasonably likely to have a material negative impact on the reputation and/or goodwill of the other Party; and (ii) use the other Party’s proprietary materials in any manner that is disparaging, misleading, obscene or that portrays the Party in a negative light.

5. ANTI-SPAM POLICY

5.1 Company strictly forbids the use of unsolicited commercial email (UCE) or spam campaigns. Company maintains a zero-tolerance policy against spam, be it direct, a third party or any affiliate of Affiliate or similar agent acting on the Affiliate’s behalf. As such, Company reserves the right to terminate Affiliate’s Account, if Company determines that Affiliate has breached Company’s anti-spam policy or any part thereof, without notice, liability or compensation to Affiliate.

5.2 Should Affiliate be involved in any unsolicited commercial email (UCE) or spam campaign(s) (including but not limited to flooding newsgroups, distributing messages to buyers and sellers who do not want such information or any other abuse contravening unsolicited commercial email (UCE) legislation, Company shall close Affiliate’s Account; terminate this Agreement; and all pertinent information will be provided to any investigating authorities or anti-Spam organizations.

6. COMMISSION AND TAXES

6.1 Commission. In consideration for the referral of interested business owners/sellers by Affiliate to Company, and in accordance with the terms and conditions of this Agreement, Company agrees to pay Affiliate a commission fee, based on the plan selected in Affiliate’s portal, and paid for by Affiliate. If affiliate has not selected a paid plan, affiliate is automatically enrolled in the free plan. Affiliate’s commission amount shall be based on Company’s NET revenue (“Commission”) received for each successful closing of a referred business sale by Affiliate, whereby the Affiliate (via the Company) shall only be entitled to Commission if both (i) a business seller lead is submitted by the Affiliate (participating in Company’s Affiliate Program) via Company’s Portal; and (ii) a desired business sale transaction is completed by Company. For purpose of clarification, Company’s NET revenue (“Commission”) is the sum of money remaining after all expenses have been paid by Company, for the facilitation of Affiliate’s referred business sale transaction, including but not limited to legal fees, travel expenses, advertising expenses & broker/buyer’s agent/seller’s agent commission payments.

6.2 Unless otherwise agreed by the Parties in writing, the Commission shall be paid by Company to Affiliate on a monthly basis, via check and within thirty (30) calendar days date of Company receiving commission for the business sale transaction and verified cleared funds.

Commissions earned from the referral of other affiliates into this affiliate program shall be paid 2 months in arrears. For clarification, all qualified affiliate referrals submitted in the month of January shall be eligible for commission payment in the month of March. Affiliate commission payouts will have any refunds and/or chargebacks subtracted from the commission payment due to affiliate. Any affiliate who has had too many chargebacks and/or refunds associated with their referrals, may have their account suspended or the affiliate referral feature suspended, at the sole discretion of The Company.

6.3 Company will pay Affiliate the Commission only upon collection by Company of the applicable amounts from the applicable buyer/seller for the successful business sale transaction.

6.4 Eligibility. To be eligible for a Commission, Affiliate agrees that the following must occur:

  1. the lead submitted by Affiliate via the Portal must be accepted and be valid in accordance with Section 6.6 below;
  2. the desired business sale transaction must have occurred; and
  3. all transactions must occur on Company’s Website and Portal.

6.5 Affiliate is NOT eligible to receive Commission or any other compensation from Company if:

  1. such Commission is disallowed or limited by local laws or regulations or the laws or regulations of Affiliate’s jurisdiction; or
  2. the Commission payment has been obtained by fraudulent means, in violation of any Affiliate Program policies that Company makes available to Affiliate, and any misuse deemed by Company to be a breach of the terms and conditions of this Agreement.

Company reserves the right to discontinue Commission payments to Affiliate should any of the eligibility criteria set forth in this Section fail to be met by Affiliate at any time during the Term (defined below) of this Agreement.

6.6 Acceptance and Validity. Affiliate will only be eligible for a Commission payment for any business sale transactions that are derived from Affiliate submitting such lead via the Portal and accepted by Company. Company may choose not to accept any lead from Affiliate, in Company’s reasonable discretion. Furthermore, any lead submitted from Affiliate shall not be considered valid if such lead is after the expiry or termination of this Agreement.

6.7 Taxes. Except as otherwise provided in this Agreement, Affiliate shall hold Company harmless from and against any and all third party (Government) claims to collect any and all taxes (including interest and penalties on any such amounts, but other than Company’s corporate income and similar taxes), payments, or fees required to be paid by Affiliate to any third party (Government) for the purchase of the Services. Furthermore, Affiliate shall be solely responsible to bear, remit, and pay any and all taxes, which shall include but not be limited to sales, use, value-added, consumption, excise, gross receipts or other similar taxes, in relation to the Commission received by Affiliate under this Agreement.

7. REPRESENTATIONS, WARRANTIES & DISCLAIMERS

7.1 Mutual Representations. Each Party represents and warrants to the other Party that: (i) such Party is a business (where applicable) duly incorporated, validly existing, and in good standing under the laws of its jurisdiction of incorporation; (ii) such Party has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement; (iii) the execution, delivery, and performance of this Agreement constitutes the legal, valid, and binding agreement of such Party; and (v) no consent, approval or withholding of objection is required from any entity, including any governmental authority, with respect to such Party’s entering into this Agreement.

7.2 Affiliate represents and warrants that:

  1. Affiliate will comply with the terms and conditions of this Agreement, all applicable laws and regulations, and any policies related to the provision of the submission any leads to Company under this Agreement;
  2. Affiliate will not make any unauthorized, false, misleading, or illegal statements in connection with this Agreement or regarding the Affiliate Program and Services and will not make any representation or warranty that is inconsistent with this Agreement;
  3. Affiliate has obtained and will maintain all licenses, permits and approvals and will be responsible for satisfying all formalities as may be required to (a) enter into this Agreement, (b) perform Affiliate’s obligations in accordance with this Agreement, and (c) comply with applicable laws, rules and regulations;
  4. the execution and delivery of this Agreement, and the performance by Affiliate of Affiliate’s obligations hereunder, will not constitute a breach or default of or otherwise violate any agreement to which Affiliate or any of its affiliates (if applicable) are a party, or violate any rights of any third parties arising from those agreements, including without limitation any rights related to exclusivity; and
  5. Affiliate and its directors, officers, employees and agents have not, and will not offer, pay, promise or authorize the payment, directly or indirectly through any other person or entity, of any monies or anything of value for the purpose of inducing or rewarding any favorable action or influencing any act or decision in connection with the submission of any leads to Company via the Portal.

7.3 Company warrants that Company will perform the Services (i) in a diligent and highly professional manner, and (ii) in accordance with applicable law. Company will obtain all required governmental and third-party licenses, approvals, and permits appropriate for the provision of the Services.

7.4 Disclaimers. Unless otherwise provided under this Agreement, the Services and Affiliate Program shall be provided by Company to Affiliate on an “as is,” and “as available” basis, with all faults, defects, bugs, and errors.

7.5 COMPANY HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH REGARD TO AFFILIATE’S ACCESS AND USE OF THE AFFILIATE PROGRAM AND SERVICES, INCLUDING ALL WARRANTIES AND CONDITIONS OF MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AACURACY, NON-INFRINGEMENT, QUIET ENJOYMENT OR INTEGRATION AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. COMPANY DOES NOT WARRANT THAT THE PORTAL AND SERVICES OR OTHER ITEMS PROVIDED BY OR ON BEHALF OF COMPANY UNDER THIS AGREEMENT ARE FREE FROM BUGS, VIRUSES, HARMFUL COMPONENTS, ERRORS, OR DEFECTS, OR THAT THE OPERATION OF ANY OF THE FOREGOING WILL BE SECURE OR UNINTERRUPTED, NOR DOES COMPANY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PORTAL AND SERVICES. AFFILIATE SHALL NOT HAVE THE RIGHT TO PASS ON ANY REPRESENTATION OR WARRANTY OF COMPANY TO ANY THIRD-PARTY OR END USER, NOR DOES COMPANY PROMISE TO BACKUP ANY OF AFFILIATE’S DATA/INFORMATION/CONTENT. AFFILIATE ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF PRIVACY, CONFIDENTIAL INFORMATION AND PROPERTY. COMPANY SPECIFICALLY DISCLAIMS AND MAKES NO REPRESENTATION OR WARRANTY, ORAL OR IN WRITING, CONCERNING THE VIABILITY, ENFORCEABILITY, OR COMPLIANCE WITH APPLICABLE LAWS IN RELATION TO THE PORTAL AND SERVICES, AND THE USE BY AFFILIATE OF THE PORTAL AND SERVICES IN A PARTICULAR COUNTRY, TERRITORY, OR REGION. 

7.6 COMPANY MAKES NO WARRANTY THAT (I) THE SERVICES WILL MEET AFFILIATE’S REQUIREMENTS OR EXPECTATIONS, (II) AFFILIATE’S ACCESS TO OR USE OF THE AFFILIATE PROGRAM AND SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR FREE, THAT DATA WON’T BE LOST, OR (III) ANY DEFECTS IN THE AFFILIATE PROGRAM AND/OR SERVICES WILL BE CORRECTED OR THAT THE PORTAL AND SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL CODE. COMPANY AND ITS VENDORS FURTHER DISCLAIM ANY AND ALL LIABILITY OR RESPONSIBILITY FOR ANY DELAYS, FAILURES, INTERCEPTION, ALTERATION, LOSS, OR OTHER DAMAGES THAT AFFILIATE MAY SUFFER, AND THAT ARE BEYOND COMPANY’S CONTROL.

7.7 EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY DOES NOT WARRANT, AND EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION (I) THAT THE PORTAL AND SERVICES (OR ANY PORTION THEREOF) IS COMPLETE, ACCURATE, OF ANY CERTAIN QUALITY, RELIABLE, SUITABLE FOR, OR COMPATIBLE WITH, ANY OF AFFILIATE’S CONTEMPLATED ACTIVITIES, DEVICES, OPERATING SYSTEMS, BROWSERS, SOFTWARE OR TOOLS (OR THAT IT WILL REMAIN AS SUCH AT ANY TIME), OR COMPLY WITH ANY LAWS APPLICABLE TO AFFILIATE; AND/OR (II) REGARDING ANY CONTENT, INFORMATION, OR RESULTS THAT AFFILIATE OBTAINS THROUGH THE USE OF THE PORTAL AND SERVICES.

7.8 COMPANY DOES NOT WARRANT OR GUARANTEE THAT ANY SUCCESSFUL COMMERCIAL RESULTS OR PROFITS WILL BE OBTAINED BY AFFILIATE AS A RESULT OF ACCESSING/USING THE AFFILIATE PROGRAM AND SERVICES. AS SUCH, COMPANY WILL NOT BE LIABLE FOR ANY FAILURE, OR ANY LOSS OR DAMAGES INCURRED/SUSTAINED BY AFFILIATE, AS REGARDS TO AFFILIATE’S USE OR INABILITY TO USE THE AFFILIATE PROGRAM AND SERVICES. 

7.9 Company does not guarantee that the Services and Portal will be offered indefinitely and reserves the right, at its sole discretion, to (i) change the Services being offered, and (ii) alter the features and options associated with the Portal.

8. CONFIDENTIALITY

8.1 Confidential Information. Each Party acknowledges and agrees that all business and technical information provided to it by the other Party pursuant to this Agreement constitutes confidential and/or proprietary information of the other Party (“Confidential Information”). Confidential Information shall include (i) each disclosing Party’s oral, written or recorded confidential and/or proprietary information about or related to the disclosing Party or its business; (ii) the terms and conditions of this Agreement (iii) any information or materials a Party provides to the other.

8.2 Notwithstanding Section 8.1, Confidential Information does not include information that (i) is or becomes publicly available without breach of this Agreement; (ii) is rightfully received from a third party under no obligation of confidentiality who did not acquire or disclose such information through a wrongful or tortious act; or (iii) can be shown by documentation to have been developed by the receiving Party without reference to any Confidential Information. The burden of proof with respect to establishing that any of the foregoing exceptions applies is on the receiving Party.

8.3 Use of Confidential Information. Each Party represents and warrants to the other Party that it shall not use the other Party’s Confidential Information for any non-expressly authorized purpose, or disclose such Confidential Information to any third party except for attorneys, accountants, auditors, and/or the third party contractors, provided that such third parties have reason to know such Confidential Information and are bound by confidentiality, non-disclosure and non-use obligations (which shall not be waived) at least as protective as the obligations provided under this Section 8.

Furthermore, Confidential Information shall not be disclosed by each Party, unless such disclosure is:

  1. necessary in order for each Party to perform its obligations or enforce its rights under this Agreement or as required by law,
  2. to the extent a Party obtains prior written approval from the other Party, and/or
  3. to the extent a Party is legally compelled to disclose such Confidential Information by the valid order of a court of competent jurisdiction. Under such circumstances a Party, shall (a) notify the other Party as promptly as practicable prior to making any disclosure, and (b) endeavour to protect such Confidential Information from unnecessary disclosure.

Each Party shall take all reasonable measures to protect the secrecy of and avoid disclosure of Confidential Information, which measures shall be no less than reasonable care and shall include all of those measures that the receiving Party uses to protect its own Confidential Information. For the avoidance of doubt, each Party shall be responsible to the other Party for the actions or omissions of its employees, attorneys, accountants, auditors and/or third party contractors if such actions or omissions result in a breach of this Section 9.

8.4 Upon written request of a Party or upon the termination of this Agreement, each Party shall return and/or destroy all the other Party’s Confidential Information, and any copies thereof, in any medium or format which are in such Party’s possession or control.

8.5 The provisions of this Section 8 shall continue indefinitely, notwithstanding the termination of this Agreement for any reason.

9. COMPANY’S INTELLECTUAL PROPERTY

9.1 “Intellectual Property Rights” shall refer to all Company’s patent rights, rights to inventions, utility model rights, copyrights, domain name rights, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in Company’s Confidential Information (including know-how and trade secrets) and any other intellectual property rights, statutory or otherwise, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

9.2 Company is and shall remain the sole and exclusive owner of all Intellectual Property Rights in/to the Services and Portal (including but not limited to any content, training material and information contained on the Portal and Website). Other than those purposes expressly stated/authorized under this Agreement, Affiliate acknowledges and agrees to not use Company’s Affiliate Program and Services for any non-expressly authorized/stated purposes. Nothing in this Agreement shall be construed as granting to Affiliate any right, entitlement, license, patent, copyright, design license or any other Intellectual Property Rights which may now or hereafter exist. Furthermore, Affiliate acknowledges that nothing in this Agreement shall be deemed to be a waiver, transfer or entitlement to any such Intellectual Property Rights by Company to Affiliate.

10. INDEMNIFICATION

10.1 Each Party agrees at all times to indemnify, defend, and hold harmless the other Party and its (group) affiliates, and each of their respective shareholders, directors, officers, employees, agents and representatives (“Indemnified Parties”), from and against any and all third party claims, actions, judgments, damages, liabilities, costs, and expenses, including reasonable attorneys’ fees and costs, arising out of, related to or resulting from any breach or alleged breach of this Agreement by the indemnifying Party.

10.2 Company shall additionally indemnify and hold harmless Affiliate and its Indemnified Parties from and against any third party claim (i) resulting from the Services and Affiliate Program provided by Company; and/or (ii) arising from the Services violating or infringing upon any applicable law or right of any third party (including any copyright, trademark, or patent right).

11. LIMITATION OF LIABILITY

11.1 EITHER PARTY SHALL IN NO EVENT BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OR FOR ANY LOST PROFITS, LOST SAVINGS OR LOSS OF REVENUES SUFFERED BY THE OTHER PARTY ARISING FROM OR IN ANY WAY CONNECTED WITH (I) THIS AGREEMENT; (II) THE PERFORMANCE BY COMPANY OF THE SERVICES; AND/OR (III) THE AFFILIATE PROGRAM, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL BE INTERPRETED AND HAVE EFFECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, RULE OR REGULATION.

11.2 COMPANY’S TOTAL LIABILITY TO AFFILIATE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE COMMISSION PAID BY COMPANY TO AFFILIATE IN THE TWELVE (12) MONTHS PRECEDING, MINUS ANY AMOUNTS PAID BY COMPANY DURING THAT SAME PERIOD FOR ANY PRIOR LIABILITY.

12. CANCELLATION OF AFFILIATE’S ACCOUNT, TERM, AND TERMINATION

12.1 Affiliate may cancel Affiliate’s Account at any time via the Portal, or by sending Company an email to bscsupport@hedgestone.com.

12.2 The term of this Agreement shall commence on the Effective Date and shall be for an initial period of twelve (12) months (“Initial Term”). The Initial Term shall renew for successive periods of twelve (12) months (each a “Renewal Period”) unless terminated by either Party in accordance with this Section. The Initial Term and each Renewal Period shall collectively be referred to as the “Term”.

12.3 Termination for Convenience. Either Party may terminate this Agreement for any reason or no reason at all, and without liability by providing the other Party with seven (7) calendar days written notice.

12.4 Termination for Cause. Either Party may terminate this Agreement in the event of:

  1. a material breach by the other Party if the breaching Party has not cured/remedied such breach within thirty (30) calendar days of receiving a written notice from the other Party describing such material breach;
  2. an order is made, or a resolution is passed by any competent authority for the winding up of the other Party, or if circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other Party;
  3. an order is made by any competent authority for the appointment of an administrator to manage the affairs, business and property of the other Party, or legal documents are filed by a third party with a court of competent jurisdiction for the appointment of an administrator of the other Party;
  4. a receiver is appointed by an authority of competent jurisdiction, or if any other third party takes possession of or sells the other Party’s assets;
  5. the other Party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
  6. the other Party ceases, or threatens to cease, to trade; or
  7. the other Party takes any similar action in any jurisdiction as a consequence of the other Party incurring debt.

12.5 Except as expressly provided herein, upon the termination of this Agreement: (i) all Company’s payment obligations shall cease other than those incurred prior to such termination; (ii) all rights and licenses granted hereunder shall terminate immediately; (iii) each Party shall return to the other Party any property belonging to and/or received from the other Party and/or destroy the other Party’s Confidential Information; (iv) Company shall immediately cease the provision of the Services; and (v) Affiliate will not be eligible to receive any Commission relating to any lead submitted/referred by Affiliate via the Portal after the effective date of termination.

12.6 If affiliate has selected and paid for a monthly or annual subscription and the affiliate’s billing method is declined, affiliate will be notified by email and will have 7 business days to update their payment method. If affiliate fails to update their payment method, or cancels their subscription, or disputes any charges for this program with their credit card company, Affiliates account will be reverted to the free plan, and any leads or pending sales shall be paid out to affiliate based on the commission structure afforded by the free plan.

13. DISPUTE RESOLUTION

Should any dispute arise between the Parties as to the meaning or application of this Agreement, the rights or liabilities of the Parties or otherwise in relation to this Agreement, then (without prejudice to any other express or implied rights or powers) the dispute or claim (“Dispute“) shall be resolved as follows:

  1. A Party must not commence arbitration or court proceedings (except proceedings seeking interlocutory relief) relating to a Dispute arising under this Agreement unless it has complied with this Section;
  2. A Party claiming that a Dispute has arisen under this Agreement must give the other Party written notice of the particulars of the Dispute;
  3. In the event of a Dispute, between the Parties hereto, arising out of the Services or in any way relating to this Agreement or any term, condition or provision herein mentioned or the construction or interpretation thereof or otherwise in relation hereto, the Parties hereto will use their reasonable best efforts to resolve any Dispute hereunder through good faith negotiations. A Party hereto must submit a written notice to the other Party, and any such Dispute that cannot be resolved within thirty (30) calendar days of receipt of such notice (or such other period to which the Parties may agree) will be submitted to an arbitrator selected by mutual agreement of the Parties. In the event that, within thirty (30) days of the written notice referred to in the preceding sentence, a single arbitrator has not been selected by mutual agreement of the Parties, a panel of arbitrators (with each Party to the Dispute being entitled to select one arbitrator and, if necessary, to prevent the possibility of deadlock, one additional arbitrator being selected by such arbitrators selected by the Parties to the Dispute) shall be selected by the Parties. Except as otherwise provided herein or as the Parties to the Dispute may otherwise agree, such arbitration will be conducted in accordance with the then existing rules of the Association of South Florida Mediators & Arbitrators in Broward County, Florida, USA. The decision of the arbitrator or arbitrators, or of a majority thereof, as the case may be, made in writing will be final and binding upon the Parties hereto as to the questions submitted, and the Parties will abide by and comply with such decision; provided, however, that the arbitrator or arbitrators, as the case may be, shall not be empowered to award punitive damages. Unless the decision of the arbitrator or arbitrators, as the case may be, provides for a different allocation of costs and expenses determined by the arbitrators to be equitable under the circumstances, the prevailing Party in any arbitration will be entitled to recover all reasonable fees (including but not limited to attorneys’ fees) and expenses incurred by it or them in connection with such arbitration from the non-prevailing Party.
14. GOVERNING LAW & JURISDICTION

This Agreement, and any Dispute arising out of or in connection with the Agreement, its subject matter or its formation (including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of Florida, USA. The Parties irrevocably submit to the exclusive jurisdiction of the Association of South Florida Mediators & Arbitrators in Broward County, Florida, USA to settle any dispute which may arise out of or in connection with this Agreement.

15. FORCE MAJEURE

Neither Party shall be liable in the event that a Party’s performance of this Agreement is prevented, or rendered so difficult or expensive as to be commercially impracticable, by reason of an Act of God, epidemic, pandemic, labor dispute, unavailability of transportation, governmental restrictions or actions, war (declared or undeclared) or other hostilities, or by any other event, condition or cause which is not foreseeable on the Effective Date and is beyond the reasonable control of the Party. In the event of non-performance or delay in performance attributable to any such causes, the period allowed for performance of the applicable obligation under this Agreement will be extended for a period equal to the period of the delay. However, the Party so delayed shall use its best efforts, without obligation to expend substantial amounts not otherwise required under this Agreement, to remove or overcome the cause of delay. In the event that the performance of a Party is delayed for more than six (6) months, the other Party shall have the right, which shall be exercisable for so long as the cause of such delay shall continue to exist, to terminate this Agreement without liability for such termination. 

16. NO AGENCY, PARTNERSHIP, OR EMPLOYMENT RELATIONSHIPS

16.1 Affiliate acknowledges that Company is merely a service provider. Accordingly, there is no employment, agency, joint venture, or partnership relationship between Affiliate and Company. The Parties are independent contractors.

16.2 Affiliate acknowledges and agrees that Company shall not provide Affiliate with any employee benefits, including without limitation any employee stock purchase plan, social security, unemployment, medical, or pension payments, and that income tax withholding is the Affiliate’s responsibility.  In addition, the Parties acknowledge that neither Party has, or shall be deemed to have, the authority to bind the other Party.

16.3 This Agreement is not intended by the Parties to constitute or give rise to an employment contract and both Parties acknowledge that the Services as defined under this Agreement are supplied on the basis of both Parties being independent contractors.

16.4 In the event that any third party should seek to establish any liability or obligation on Company on the grounds that Affiliate is an employee of Company, Affiliate shall upon demand indemnify Company and keep Company indemnified in respect of any such liability or obligation, and any related proper and reasonable costs expenses or other losses which Company shall properly incur as a direct result of such liability.  

17. NON-COMPETE

17.1 During the Term (defined below) of this Agreement, within the State of Florida, USA and for a period of two (2) years following the termination of the present Agreement, the Affiliate hereby agrees not to:

  1. directly or indirectly interfere with, disrupt or attempt to disrupt or interfere with any present/current/ongoing business relationship, contractual or otherwise, between the Company and any of its buyers, sellers or potential clients;
  2. carry on, participate, assist, be engaged, be concerned or be interested in any business which is a competitor with the Company’s Services and business activities;
  3. directly or indirectly, alone or with others, work on, plan, prepare for, organize or engage in any activity (whether or not for compensation) throughout the world that is competitive with Company’s business;
  4. engage with any competitors of Company without the prior written consent of Company, which may only be granted by a duly authorized representative of Company, at Company’s discretion;
  5. solicit for employment or employ any employee/contractor of Company without prior written consent of Company, which may only be granted by a duly authorized representative of Company, at Company’s discretion; and
  6. engage in any other activity that conflicts with Affiliate’s obligations resulting from the present Agreement.

17.2 The provisions of this Section 17 shall continue indefinitely, notwithstanding the termination of this Agreement for any reason.

18. NON-DISPARAGEMENT

Each Party agrees and covenants that the Party shall not at any time make, publish, or communicate to any person or entity or in any public forum, including, without limitation, on any digital or online review sites or forums, any defamatory, discrediting or disparaging remarks, comments or statements concerning the other Party or its businesses, or any of a Party’s employees or officers, now or in the future. For the purposes of this Section, a disparaging or discrediting statement or representation is any communication which, if publicized to another, would cause or tend to cause the recipient of the communication to question the business condition, integrity, competence, good character, or product quality of the person or entity to whom the communication relates, but will not include any disclosure required to be made to any governmental or quasi-governmental agency, or any disclosure made in the course of any pending or threatened litigation, mediation, arbitration or agency action.

19. NOTICE

Any notice, consent or other communication required or permitted under this Agreement shall be written in English and shall be deemed given when (i) delivered personally; (ii) sent by confirmed facsimile transmission; or (iii) sent by commercial courier with written verification of receipt returned to the sender. Notice, consent or other communications (but not service of process) may also be given by e-mail. Rejection or other refusal to accept or the inability to deliver because of changed address or facsimile number of which no notice was given shall be deemed to constitute receipt of the notice, consent or communication sent. Names, addresses and facsimile numbers for notices (unless and until written notice of other names, addresses and facsimile numbers are provided by either or both parties) are provided below. 

20. NO WAIVER

Each Party agrees that any delay or omission on the part of the other Party to exercise any right, power or remedy under this Agreement will not automatically operate as a waiver of such right, power or remedy or any other right, power or remedy and no waiver will be effective unless it is in writing and signed by the waiving Party. Further the waiver or the single or partial exercise of any right, power or remedy by either Party hereunder on one occasion will not be construed as a bar to a waiver of any successive or other right, power or remedy on any other occasion.

21. SEVERABILITY

In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this remaining provisions of the Agreement unenforceable or invalid, and, in such event, such remaining provisions shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decision.

22. ASSIGNMENT

This Agreement shall not be assigned by either Party without the prior written permission of the other; provided, however, either Party may assign its rights and obligations hereunder without the prior written permission of the other Party to any entity acquiring all, or substantially all, of the assets or shares of that Party. Notwithstanding the above, this Agreement shall be binding upon any permitted successors and assigns of either Party.

23. COUNTERPARTS

This Agreement may be made in several counterparts, each of which shall be deemed an original. The provisions of this Agreement that, by express terms of this Agreement, will not be fully performed during the Term of this Agreement, shall survive the termination of this Agreement to the extent applicable.

24. ENTIRE AGREEMENT

This Agreement contains the full and entire agreement between the Parties with respect to the subject matter hereof. It supersedes all prior negotiations, representations and proposals, written or otherwise, relating to its subject matter.

25. ELECTRONIC SIGNATURE BY CHECKING THE “I ACCEPT” BOX

This Agreement shall come into force on the date upon which Affiliate accepts the terms and conditions of this Agreement, by checking the box “I Accept” and clicking the “Submit” button below and will remain in full force and effect in accordance with the terms provided herein, unless terminated earlier by the Parties. Upon checking the “I Accept” box below (i) Affiliate confirms that Affiliate has fully read this Agreement after having had the opportunity to consult with legal counsel, (ii) Affiliate represents and warrants that Affiliate has the right, authority and capacity to enter into this Agreement, (iii) Affiliate is electronically signing/executing this Agreement in a manner which is legally equivalent to Affiliate’s handwritten signature, (iv) Affiliate agrees that the Agreement will come into force immediately and automatically, and (v) Affiliate will become legally bound by all enforceable terms and conditions contained in this Agreement.

Effective Date: 1/1/2023