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General Terms and Conditions
This document contains the general terms and conditions of the Referral Agreement (“Agreement”) executed by ColoHouse and Referral Partner pursuant to which ColoHouse may pay Referral Fees to Referral Partner.
For purpose of the Agreement and this document, the following defined terms are used:
“Agreement” means the Referral Agreement executed by ColoHouse and Referral Partner that sets forth specific terms of the arrangement between ColoHouse and Referral Partner regarding referral of potential business opportunities to ColoHouse.
“ColoHouse” means ColoHouse, LLC, and who is a party to the Agreement.
“General Terms” means this document, which terms and conditions are incorporated into, and made a part of, the Agreement as if fully set forth in the Agreement.
“MRC” means the regular monthly recurring charge invoiced to a customer by ColoHouse for Services excluding any applicable taxes required to be imposed on such charge. MRC does not include non-recurring charges and other support service fees invoiced to a customer unless specifically designated in the Agreement.
“Qualified Prospect” means the person or entity that (a) is a potential customer for Services and is not an existing customer of ColoHouse; (b) has been approved in advance for Referral Partner to solicit for Services; and (c) Referral Partner would be entitled to a Referral Fee if such Qualified Prospect executes a Service Order with ColoHouse before the end of the Post-Termination Period.
“Post-Termination Period” means a period ending six months following the termination of the Agreement for any reason.
“Referral Fee” means the amount payable to Referral Partner for MRC collected from any Qualified Prospect that executes a Service Order with ColoHouse during the Term or before the end of the Post-Termination Period. The amount of the Referral Fee that may be earned by Referral Partner shall be set forth in the executed Agreement.
“Referral Fee Period” means the period for which a Referral Fee shall be paid by ColoHouse to Referral Partner for Services provided to Qualified Prospects, which period is the lesser of: (a) one year; (b) the term of the initial Service Order with the Qualified Prospect; or (c) termination of the Service Order, for any reason, with the Qualified Prospect.
“Referral Partner” means the person or entity identified on the executed Agreement and who agrees to be bound by these General Terms upon execution of the Agreement.
“Services” means any service offered by ColoHouse to its customers from time to time.
“Service Order” means the document executed by a Qualified Prospect to become a customer of ColoHouse with respect to the provision of Services.
“Term” means the period of time set forth in the executed Agreement with Referral Partner.
2. REFERRAL PARTNER’S OBLIGATIONS
(a) Referral Partner may receive payment of a Referral Fee only for Qualified Prospects that execute a Service Order with ColoHouse during the period ending at the end of the Post-Termination Period as set forth in these General Terms. Referral Partner must submit a notice to ColoHouse listing the name of a potential customer that it wishes to be approved as a Qualified Prospect. The approval of any submitted potential customer is in the sole discretion of ColoHouse. Unless ColoHouse provides notice to Referral Partner that the submitted potential customer is approved as a Qualified Prospect for the Referral Partner, no Referral Fee may be earned by such Referral Partner with respect to such submitted potential customer.
(b) Referral Partner must coordinate its solicitation efforts with ColoHouse through the designated engagement manager for the Qualified Prospect. With respect to the Qualified Prospect, Referral Partner must conduct its business activities in a professional manner that promotes the good image, goodwill and public relations of ColoHouse. Referral Partner must promptly report to ColoHouse any complaints or other comments received from the Qualified Prospect regarding ColoHouse and/or the Services.
(c) Referral Partner has no authority to enter into any arrangement in the name of ColoHouse with a Qualified Prospect. Furthermore, Referral Partner may not make any representation relating to ColoHouse and/or the Services without the prior approval of ColoHouse.
(d) Referral Partner must use commercially reasonable efforts to ensure that it and its sale representations do not (i) engage in any unfair or deceptive trade practices involving the Services; (ii) make any false, misleading or disparaging statements regarding ColoHouse, the Services and/or any of ColoHouse’s competitors; or (iii) make any bribe, kickback or similar payment in connection with offering the Services.
(e) During the Term, ColoHouse may disclose proprietary and confidential business information regarding ColoHouse and its business operations (“confidential information”). Referral Partner must hold such confidential information in strict confidence and not disclose to any other party (other than as required by law) without the prior approval of ColoHouse. Referral Partner must take reasonable measures to avoid disclosure of such confidential information, which shall not be less than the standard used by Referral Partner in protecting its own business information.
3. COLOHOUSE’S OBLIGATIONS
(a) ColoHouse shall cooperate with Referral Partner in order to assist in the sale of Services to Qualified Prospects. ColoHouse shall provide Referral Partner with information needed to help in soliciting Qualified Prospects for the sale of Services.
(b) ColoHouse shall pay earned Referral Fees to Referral Partner on a monthly basis. The monthly payment shall be made within 30 days of the end of each calendar month in which MRC from Qualified Prospects is collected by ColoHouse.
(c) Following termination of the Agreement for any reason, if MRC earned by ColoHouse during the Referral Fee Period is collected before the end of the Post-Termination Period, then ColoHouse shall pay the Referral Fee to Referral Partner. If MRC earned by ColoHouse during the Referral Fee Period is not collected by ColoHouse before the end of the Post-Termination Period, then Referral Partner is not entitled to the Referral Fee for such Qualified Prospect even if ColoHouse ultimately collects the earned MRC.
(d) The determination made by ColoHouse regarding the amount of the Referral Fee to be paid to Referral Partner shall be final and binding unless there is a clear mathematical error or gross negligence in making such determination.
(e) If a Qualified Prospect at the time of termination of the Agreement with Referral Partner executes a Service Order before the end of the Post-Termination Period, then Referral Partner shall be entitled to a Referral Fee arising from the Services covered by the executed Service Order of such Qualified Prospect for the applicable Referral Fee Period.
4. TERM AND TERMINATION
(a) The initial Term of the Agreement is set forth in the executed Agreement.
(b) Upon expiration of the initial Term, the Term is automatically renewed annually unless either the Referral Partner or ColoHouse gives the other party written notice that it is not renewing the Referral Agreement Date as permitted under the General terms.
(c) Either party may terminate the executed Agreement upon 30 days written notice to the other party.
(d) Upon termination of the Agreement for any reason, Referral Partner must stop soliciting Qualified Prospects on behalf of ColoHouse. Furthermore, Referral Partner shall return to ColoHouse all information in its possession regarding the solicitation of Qualified Prospects for the provision of Services.
(a) The Agreement may not be assigned or transferred by Referral Partner without the written consent of ColoHouse.
(b) The Agreement shall not be deemed to establish any agency, joint venture or partnership relationship between ColoHouse and Referral Partner. At all times each party shall be acting as an independent contractor.
(c) The Agreement is governed by the laws of the State of Florida without regard to conflicts of laws principles.
(d) The Agreement incorporates the terms and conditions set forth in these General Terms as if they were fully set forth in the Agreement. The Agreement constitutes the full and complete understanding and agreement of the parties. The Agreement may not be modified or amendment without the written approval of both parties.
(a) Any notice, consent or other communication required or permitted under the Agreement must be in writing. The notice shall be deemed given (i) when delivered in person; (ii) one business day after deposit with an overnight delivery service for next day delivery; or (iii) three business days after deposit in first class U.S. mail, postage prepaid, and addressed to the recipient party.
(b) In addition, with respect to approval of a potential customer as a Qualified Prospect the notice may be sent by fax, email or other electronic transmission. Such notice shall be deemed given on the date of confirmed receipt of such transmission.
(c) The initial notification address for each party is set forth on the Agreement. A party may change its notification address by notice to the other party pursuant to this Section 6.
LAST UPDATED: FEBRUARY 2015