Fielo Referral Program Participation Agreement  

This Fielo Referral Program Participation Agreement (the “Agreement”) is made by and between Via Consultoria Empresarial S.A., a Brazilian company with its head offices located at Rua Visconde de Pirajá 66, SL, Ipanema, Rio de Janeiro, RJ, Brazil, 22410-000 (“Fielo”), on behalf of itself, its subsidiaries and affiliates, and any business referral program participant (collectively the “Participant”, “you”, “your” or “I”) who completes the online registration process to participate in the Fielo Referral Program (the “Program”).

1. Scope. This Agreement establishes the terms and conditions under which you will register as a business referral program Participant with Fielo for the purpose of identifying and submitting a “Referral” (as defined hereafter) to Fielo promoting the Software to a Prospective or Existing Customer for compensation. BY ENROLLING IN THIS PROGRAM, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND YOU MAY NOT PARTICIPATE IN THE PROGRAM.

2. Definitions.

1. “Commission” means the compensation to be paid by Fielo to you under this Agreement, as detailed in provision 4 herein.
2. “Existing Customer” means a customer which had already purchased products and services directly from Fielo, and attend the criteria defined under provision 3.2 of this Agreement.
3. “Fielo Sales Agent” means an employee or contractor of Fielo who conducts sales and marketing activities for Fielo.
4. “Fielo Channel Alliance'' or “Partner Channel” means all companies, individuals, contractors, institutions, etc. with a commercial or other type of association with Fielo for the commercialization, support, maintenance and any other type of activities related to Fielo´s products.
5. “Ineligible Customers” has the meaning as provided under provision 3.2 of this Agreement.  
6. “Participant” means a member of the Program, as defined and detailed under provision 3.1 of this Agreement.
7. “Referral” is a new customer lead for Software submitted by Participant to Fielo under the Program, as further detailed on provision 3.3 of this Agreement.
8.  “Prospective Customer” means an eligible and prospective business customer for the purchase of the Software directly from Fielo, excluding Ineligible Customers and as further detailed on provision 3.2 of this Agreement.
9. “Referral Form” means the electronic form Participant must fill in to participate in the Program, including information about the Prospective or Existing Customer, the Participant and/or the opportunity envisioned, and available at www.fielo.com/partnernetwork.
10. “Software” means the Fielo software under the Program, as detailed in provision 3.4 below.
11. “Territory” means any geographic region as determined in Fielo’ sole and exclusive discretion.

3. Program Overview.

1. Eligibility of Participant. "Participant" is a member of the Program, that can be a business, entity, or other individual with a valid tax ID number, and which has been duly approved by Fielo to be a Participant under the Program as per Fielo sole and exclusive discretion. When a Participant is an individual, such individual is solely responsible for obtaining employer consent for participation in the Program before registering and shall be liable to Fielo for failing to do so. In any case, a Participant may not be (i) a Fielo employee or contractor, a relative of a Fielo employee or contractor, or anyone living in the same household as a Fielo employee or contractor; (ii) a current or former (within the last 180 days) Fielo Sales Agent or a relative of any current or former (within the last 180 days) Fielo Sales Agent including but not limited to the “Fielo Channel Alliance” also known as the “Partner Channel'' or any sub agents of Sales Agents; (iii) government officials, government owned or controlled entities and any of their employees; (iv) a vendor who sells products or services to Fielo; or (v) a vendor who engages in providing services to the Prospective Customer; (vi) political parties and candidates. Once your registration is accepted by Fielo, you will be assigned a login ID and password. This information will be used to track all your activity under this Program.

2. Eligibility of Prospective Customers and Existing Customers. A Prospective Customer must be a new customer purchasing new Fielo Software through this Program in the Territory, directly from Fielo, and which has been duly approved by Fielo to be a Prospective Customer under the Program, as per Fielo sole and exclusive discretion. Prospective Customers who have had any Fielo products or services within the last 90 days will not be considered a new Prospective Customer.

An Existing Customer must purchase new or upgrade existing Software, and must have no existing open sales opportunities on any of Existing Customer’s accounts. To be eligible, the upgrade to an existing Software must result in increased monthly revenue over the existing monthly revenue of the Software it replaces.

Prospective Customers and Existing Customers cannot be government officials, government owned or controlled entities and any of their employees, (including but not limited to local, state, federal or education entities, Indian tribes and tribal properties), political parties and candidates, or international organizations (the “Ineligible Customers”).

3. Referral. As used herein, an eligible “Referral” is (i) a sales lead provided by you to Fielo which you submit to Fielo via the website www.fielo.com/partnernetwork using a completed “Referral Form” that identifies a Prospective Customer or an Existing Customer who might be interested in receiving the Software from Fielo, and (ii) which has been duly approved by Fielo to be a Referral under the Program as per Fielo sole and exclusive discretion. You must follow the Program submission process using this website www.fielo.com/partnernetwork, in order for the Referral to be eligible for compensation. Referrals related to political campaigns, parties, or organizations, self-referrals, and other referrals deemed invalid by Fielo, in its sole discretion, are not valid under the Program. Fielo has no obligation to pursue or take any action on any Referral submitted by you. In the case of a duplicate Prospective or Existing Customer Referral, only the first eligible Referral received through the proper Program process will be considered for compensation.

4. Software. As used herein, “Software” refers to all tools, functionalities and content provided by Fielo via websites, mobile applications and/or any other type of media. Renewals and any other products or services are not eligible under the Program. Fielo reserves the right to modify, add to or delete any Software under the Program at any time and in its sole option.

5. Termination and Modification of the terms of the Program. Fielo may at any time and in its sole discretion: (i) to terminate, amend, suspend, modify or update the terms of, including but not limited to, the Program, this Agreement, compensations hereunder (and their governing terms and conditions) and will make such modified or updated terms available in writing, or (ii) revoke a Participant's account, and/or terminate Participant’s participation in the Program in its entirety. Under no circumstance Fielo shall be liable or subject to any penalty due to such actions.

6. Program Guide. Fielo may elect to create an applicable Program Guide which may include updates regarding the terms and conditions of this Agreement and other relevant Program details. The terms of any such Program Guide shall be made part of this Agreement.

4. Compensation.

1. Commission. Fielo agrees to pay you for an eligible Referral accepted by Fielo if the Prospective or Existing Customer purchases Software and generates a minimum of a one-year term agreement with Fielo for the purchase of an eligible monthly recurring revenue (“MRR”) (“Commission”). You must be in good standing with Fielo to submit Referrals and receive Commissions. All Commissions are subject to applicable government reporting and withholding requirements. The Commission is 10% of the first year annual contract value for Software, up to a maximum Commission of $25,000 before taxes, fees, and surcharges, whichever is less. Renewals and services are not eligible to Commissions under the Program.

2. Payment. Fielo will pay you a one-time Commission per eligible Referral only and when the sale is closed for eligible Software.

3. Balance of Commissions. Balance of Commissions will be paid within 180 days of the signature date of the contract between Fielo and the Prospective or Existing Customer (the “Customer Contract”). Fielo reserves the right to charge back to you or not pay any Commissions for Prospective or Existing Customers that either cancel, discontinue any Software or fail to make payment in accordance with the Customer Contract. Fielo is not responsible for any Commission paid to you that may violate specific policies to which you are subjected.

4. Taxes. Participant shall be liable for the payment of all and any federal, state and local taxes applicable to the Commissions, and timely provide Fielo with the respective taxes form required to be presented to authorities under the applicable law. In case Participant pays taxes to the American Government, at the time of execution of this Agreement, Participant shall provide to Fielo the proper completed and executed IRS Form W9, IRS Form W8-BEN, or IRS Form W8-BEN-E. Participant acknowledges that Fielo shall issue Participant IRS Form 1099, if such filing is required.

5. Commission Dispute. You must provide written notice of any dispute with respect to a Commission within 90 days of receipt of payment of such Commission. Any Commission not so disputed will be deemed accepted by you as full satisfaction of the applicable Referral, except to the extent Fielo is entitled to recover some or all of any such Commission as per provision 4.3 provided in this Agreement. Notices for Commission disputes shall be addressed to the following contact at Fielo: fielopartner@fielo.com.

5. Term and Termination.

1. Term. This Agreement shall commence on the date Fielo approves you as a Participant under the Program (the “Effective Date”) and shall continue in effect until terminated.

2. Termination for Convenience. This Agreement may be terminated by either party for any or no reason upon written notice to the other party 30 days prior to the desired termination date. Neither party shall have any expectation as to the minimum term of this Agreement. Termination notices for Fielo shall be addressed to fielopartner@fielo.com.

3. Termination for Cause. Either party may terminate this Agreement, effective immediately, (a) in the event of a breach by the other party, which the other party fails to cure within five (5) business days of receipt of a written request to cure from the other party, or (b) if the other party becomes insolvent, makes any assignment for the benefit of creditors, goes to liquidation or has a receiver or trustee appointed for the benefit of creditors, whether voluntary or otherwise, or seeks the protection of, or has a proceeding instituted against it, under the bankruptcy code or any similar statute. If, at the time of Your acceptance of this Agreement or any time thereafter, Fielo would be prohibited from doing business with You under the United States export regulations and controls, or under any other applicable law or regulation, this Agreement shall automatically be null and void.

4. Effect of Termination. Upon termination of this Agreement for any reason, You shall immediately cease the use of all Fielo brochures, literature, documentation and other materials within Your control, if any, and shall return such materials to Fielo within 10 business days. You shall have no rights or claims against Fielo in connection with termination, expiration or non-renewal of this Agreement; in particular, without any limitation, You hereby irrevocably waive any rights to severance or compensation for lost opportunities or investments to the maximum extent permissible under applicable law.

6. Relationship of the Parties. You agree that there is no employer-employee relationship, joint venture, partnership or agency created by this Agreement. You have no authority to act for, or on behalf of Fielo and are not authorized to bind Fielo in any manner whatsoever. Fielo will in no way be considered, nor will you represent to others, that Fielo is an official endorser of any party or customer represented by you.

7. Disclaimers; Limitation of Liability.

1. EACH PARTY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PROGRAM IS PROVIDED "AS IS" AND AT PARTICIPANT’S OPTION AND RISK AND FIELO DOES NOT GUARANTEE ANY RESULTS.

2.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, (A) FIELO WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, LOSS OF USE, DATA OR PROFITS, INTERRUPTION OF BUSINESS, DOWNTIME, OR PUNITIVE DAMAGES; (B) FIELO MAY NOT BE HELD LIABLE FOR DAMAGES UNDER THIS AGREEMENT IN THE AGGREGATE OF MORE THAN THE AMOUNT PAID BY FIELO TO PARTICIPANT UNDER THIS AGREEMENT IN THE 3 MONTHS BEFORE THE DATE OF THE ACTIVITY GIVING RISE TO THE SUCH CLAIM. YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR PARTICIPATION IN THE PROGRAM AND TERMINATE THIS AGREEMENT.

3. Fielo will have no liability to you for Commissions that might have been earned hereunder but (i) for the inability or failure of Fielo to provide Software to any Prospective or Existing Customer; (ii) or in the event of discontinuation or modification of the Software; or (iii) in case the Prospective or Existing Customer either cancels, discontinues any Software or fails to make payment in accordance with the terms of the respective Customer Contract.

8. Indemnification. Participant will defend, indemnify and hold harmless Fielo, its affiliates, shareholders, directors, officers and employees against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising out of: (a) Participant’s participation in the Program; (b) Participant’s web site(s), Participant brand features and Fielo’s use of any Participant content and (c) Participant’s breach of any representation or warranty in this Agreement.

9. Representations and Warranties. You represent and warrant to Fielo that: (a) you are over the age of eighteen (18) and have the power and authority to enter into and perform your obligations under this Agreement; (b) you will comply with all the terms and conditions of this Agreement; (c) you will conduct yourself in a professional manner and will not make any false, misleading or disparaging statements regarding Fielo or any Fielo competitor or any other individual or organization as it relates to any activity associated with the Program; and (d) you have provided accurate and complete registration information, including your legal name, address or telephone number. NEITHER YOU NOR ANYONE EMPLOYED BY YOU WILL MAKE ANY REPRESENTATIONS OR WARRANTIES RELATING TO FIELO SOFTWARE, PRODUCTS AND SERVICES, PRICING OR TO ANY AFFILIATION WITH FIELO. FURTHER, THIS AGREEMENT DOES NOT GRANT YOU ANY RIGHT TO USE THE FIELO TRADEMARK(S) WITHOUT THE EXPRESS WRITTEN CONSENT OF FIELO.

10. Confidentiality. During the term of this Agreement and after termination or expiration of it, Participant may not disclose the Fielo Confidential Information (as detailed below) or the terms, conditions or existence of any non-public aspect of the Referral or the Program to any third party, except to its professional advisors under a strict duty of confidentiality or as necessary to comply with law. Fielo Confidential Information includes, but is not limited to, technical information, price lists, data and business plans, all tangible or intangible information and materials, in any form or medium (and without regard to whether the information or materials are owned by Fielo or by a third party), whether furnished or disclosed to the Participant, or accessed, observed or otherwise obtained by the Participant. Fielo Confidential Information is the exclusive property of Fielo and may be used by you solely in the performance of your obligations under this Agreement. You agree that monetary damages for breach of this Section are not adequate and that Fielo will be entitled to injunctive relief with respect to such breach. This Section and all obligations contained therein shall survive any termination of the Agreement.

11. Miscellaneous.

1. Governing Law and Jurisdiction. This Agreement is governed by the laws of Brazil and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts of the capital of Rio de Janeiro, Brazil, in any dispute arising out of or relating to this Agreement.

2. Fielo Intellectual Property Rights. This Agreement does not grant Participant any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect of the Program or the Software and its respective content and documentation. This provision and all obligations contained therein shall survive any termination of the Agreement.

3. No Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Neither party will be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of the party against which such waiver is asserted.

4. Severability. If a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent possible to achieve as nearly as possible the intent of the parties, and the remainder of this Agreement will remain in full force and effect.

5. Notices. All notices, approvals, consents and other communications required or permitted under this Agreement will be invalid unless made in writing and given (a) by Fielo via mail or e-mail (to the address or number You provide) or by way of a posting on Fielo’s Referral Program Website (available at www.fielo.com/partnernetwork), or (b) by You via email to fielopartner@fielo.com. If You have a legal dispute with Fielo or if You wish to provide a notice under the Indemnification Section of this Agreement, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to: fielopartner@fielo.com.

6. Assignment. You may not assign, subcontract or delegate this Agreement or any of Your rights or obligations hereunder, in whole or in part, including without limitation by operation of law, without Fielo’s prior written consent. Any attempt to assign this Agreement without such consent will be null and void. Fielo may assign this Agreement and subcontract or delegate its obligations hereunder to any third party with or without Your consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

7. Compliance.

1. You represent and warrant that (a) You will conduct Your business activities in a legal and ethical manner; (b) You have submitted and will submit complete and truthful information in connection with your application and all Referrals; (c) You will submit all filings and obtain any approvals that may be necessary for You to perform Your obligations under this Agreement, (d) You will commit no act that would reflect unfavorably on Fielo; (e) You are not a party with whom Fielo is prohibited from doing business under U.S. export regulations and controls, or under any other applicable law or regulation; and (f) You will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with Your performance of this Agreement, including without limitation, GDPR, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws.

2. You will comply with all applicable export control and anti-boycott laws and regulations. In particular, without limitation, You will refrain from (a) appointing Referrals that could be suspected of engaging in re-exports that would be illegal under any applicable law, and (b) disclosing any technical information related to Software to prohibited persons or destinations in violation of the applicable law. You certify that neither Software nor any technical data related thereto nor the direct product thereof are intended (a) to be used for any purpose prohibited by the applicable export laws or regulations, including but not limited to nuclear proliferation, or (b) to be shipped or exported, either directly or indirectly, to any country to which such shipment is prohibited by the applicable export laws or regulations.

3. You acknowledge that any sums paid to You under this Agreement are for Your own account and that, except as appropriate to carry out Your duties set forth herein in a legal manner, You did not, have no obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or any thing of value to any other person in connection with the performance of Your referral activities hereunder. In particular, without limitation, You agree not to take any actions that would cause You or Fielo to violate the United States Foreign Corrupt Practices Act or any other similar anti-bribery law.

8. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

9. Entire Agreement and Amendment. This Agreement constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous representations, discussions, negotiations, and agreements, whether written or oral, relating to its subject matter.

10.  Force Majeure. Neither party shall have any liability for any failure or delay in performance of its obligations under this Agreement because of circumstances beyond its reasonable control.