REferral Agreement- Travel With nikki does not interact with traveler

 
 

REFERRAL AGREEMENT


THIS COMPANY AGREEMENT (“Agreement”) between Travel with Nikki, LLC a Michigan Limited Liability Company, together with its successors, assigns and subsidiaries, if any (the “Company”), and #AgencyName# (“Agency”), each a “Party,” and together referred to in this Agreement as the “Parties.” The Parties have agreed that the Agency will outsource the administration of certain of its Disney or Universal Travel Bookings to the Company, pursuant to the terms of this Agreement. The Parties agree to the following:  

  1. Term. This Agreement shall be effective as of the date listed above and shall continue until completion of the Services outlined in Exhibit A. 

  2. Services and Warranties. The Parties shall perform the Services described in this Agreement and Exhibit A. 

Company represents and warrants that: 

  • a) Company will perform the Services:  i) in a timely, diligent, professional, and workmanlike manner; ii) in accordance with the Agreement, iii) in a manner consistent with best practices in the industry; and, iv) in compliance with all applicable laws and regulations;

  • b)Company has the full and unrestricted right, power, and authority to enter into this Agreement, perform the Services, and grant the rights granted in this Agreement; 

  • c)Company has no other agreements with any other party that would conflict with this Agreement; and, 

  • d) Company is not authorized to enter contracts or agreements or create obligations on behalf of Agency to third parties unless otherwise indicated by Company, in writing. 

  • e) All elements of text, images, or other artwork provided by Company to Agency: i) are either owned by Company or Company has obtained all necessary permissions or licenses for their use, and ii) do not infringe on the rights of any third parties, including trademark rights; and, 

  • f) Company is responsible for the accuracy, completeness, and propriety of all information provided by Company to Agency.

Agency represents and warrants that: 

  • a) Agency has the full and unrestricted right, power, and authority to enter into this Agreement, perform the Services, and grant the rights granted in this Agreement; and,

  • b)Agency has no other agreements with any other party that would conflict with this Agreement; 

    3. Compensation. Agency shall pay Company the fees and commissions in US dollars as indicated in Exhibit B. Company will send an invoice to Company with a summary of all sums owed. All invoices are due upon receipt/within twenty (20) days. All acceptable methods of payment will be indicated on the invoice.

If Agency has not paid its invoice within twenty (20) days of receipt of such invoice, Agency agrees that it will be charged a late fee of .25% of the total amount due on a weekly basis until payment is received.

Failure to pay may result in temporary or permanent suspension of Services.

If Company incurs legal fees, costs, or disbursements in order to collect its invoices, in addition to interest on the unpaid balance, Agency agrees to reimburse Company for all such expenses.

4. Expenses. Company shall not be liable to Agency for expenses paid or incurred by Agency, except for those fees that the Parties agree to in writing. 

5. Changes/Revisions. This Agreement is limited to the Services outlined in Exhibit A. If Agency requests new work or changes that are outside the original scope of the Services, Company will provide an estimate for the completion of such new work or changes.

6. Independent Contractor Relationship. Company’s relationship with Company is that of an Independent Contractor, and nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Agency shall not require Company to perform any duties at Agency’s place of business, nor shall Agency require Company to work a stated number of hours or keep any specific schedule. Company is not authorized to make any representation, contract or commitment on behalf of Company unless specifically requested or authorized in writing to do so by the Agency, or except as is contemplated by this Agreement. Company is solely responsible for, and will file, on a timely basis, all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of services and receipt of commissions under this Agreement. Company is solely responsible for, and must maintain, its own records of expenses incurred in the course of performing Services under this Agreement. As an independent business entity, Company assumes the full risk of loss in the event that the Company’s compensation from sales does not cover expenses incurred. No part of Company’s commissions will be subject to withholding by Agency for the payment of any social security, federal, state or any other employee payroll taxes. Agency will regularly report amounts paid to Company by filing Form 1099-MISC with the Internal Revenue Service as required by law.

7. Termination. This Agreement may be terminated, postponed, or delayed, in whole or in part, by the Parties upon 14 days’ written notice to the other party. In the event of a Termination, all work by Company will remain the property of Company. Upon termination, Agency shall pay Company for the Services completed on a pro rata basis within 14 days of receipt of a detailed invoice sent via electronic or United States mail. 

Upon termination by either party in accordance with any of the provisions of this Agreement, neither Party shall be liable to the other, because of the termination for damages on account of the loss of prospective profits or anticipated sales or on account of expenditures, investments, leases, or commitments in connection with the business or goodwill of Agency or Company.


8. Confidentiality. The Parties acknowledge that the Parties may disclose to each other certain information of a confidential or proprietary nature (the “Confidential Information”) as needed in order for Company to perform the duties contemplated under this Agreement. Confidential Information includes but is not limited to either Party’s business or marketing plans or strategies, operating procedures, trade secrets, customer and supplier information, client lists, sales leads, sales projections, pricing or profit information, credit card information, its IATA, ARC, CLIA or TRUE  numbers, and any other information designated as such by either Party at the time of disclosure and any information, in any form, that is a trade secret within the meaning of Uniform Trade Secrets Act (MUTSA), MCL 445.1901 et seq. The Parties further acknowledge that unauthorized disclosure to a third party or other misuse of the Confidential Information would cause severe and irreparable harm. Except as otherwise provided below, information shall not be considered confidential hereunder nor subject to the provisions of this section if it can be demonstrated: (i) to have been rightfully in the other Party’s possession prior to the date of the disclosure of such information to Agency, if such prior possession was not otherwise subject to a restriction on disclosure; (ii) to have been in the public domain prior to the date of the disclosure of such information to the Party in question; (iii) to have become part of the public domain by publication or by any other means except an unauthorized act or omission on the part of either party, or (iv) to have been supplied to the other Party without restriction by a third party who is under no obligation to maintain such information in confidence. Confidential Information shall not be deemed to be generally available to the public or in a Party’s possession merely because it may be embraced by a more general disclosure, or merely because it may be derived from combinations of disclosures generally available to the public or in the Party’s possession. 

Company agrees not to divert current or future customers, sales, or business away and/or from Agency to any company, travel agency, or any other business engaged in the sale of travel services, while still engaged in a business relationship with Agency, and after the termination of this Agreement.

Each Party agrees to hold in strict confidence and not to disclose to others or use for any purpose (other than the performance of this Agreement and Services), either before or after termination of the Agreement, any confidential or proprietary information of the other Party, including, without limitation, any confidential or proprietary information that is transferred pursuant to this Agreement. 

Upon either Party’s request, the other Party shall return to the requesting Party all written or physical embodiments (including copies) of Confidential Information which is then in that Party’s possession, custody, or control. The confidentiality obligations set forth in this Agreement shall survive 10 years after termination or expiration of the Agreement.


9. Non-Solicitation. During the term of this Agreement and for one year following its termination, Agency will not, directly or indirectly, induce, attempt to induce, or aid others in inducing any person employed or engaged by Company to terminate their employment or contractual relationship with Company in order to render services to Agency or any third party. The Parties mutually acknowledge that such interference with employment or contractual relationships will cause direct severe and irreparable financial loss and hardship to Company.

During the term of this Agreement and for three (3) years following its termination, Company agrees that it will not make or administer non-theme-park bookings for any of Agency’s clients. Company will refer Agency’s clients back to Agency upon receipt of any such inquiry.


10. Ownership of Services. Agency acknowledges that Agency has no right, title, or interest in or to any Services produced hereunder. Agency acknowledges that Agency will make no claim to any right, title, or interest in any of the Services created hereunder. Agency further acknowledges and agrees that Company shall own all rights, title, and interest in or to any Services produced hereunder. 

For the avoidance of doubt and to further evidence the full ownership of the Services by Company, Agency hereby assigns to Company all rights, title, and interest to the Services. Agency agrees to assist Company with the enforcement of any proprietary rights over the Services, including the prompt execution of any additional documents that may be reasonably requested by Company. 


11. Company Designation. Agency grants Company the right to use Agency’s name and/or logo in Agency’s marketing materials, which may include Company’s website. 


12. Disclaimer. Company has made every effort to ensure that all business services have been tested for accuracy and effectiveness. There is no guarantee that Agency will see positive results to its business using the techniques and materials provided by Company. Company assumes no management responsibility for Agency’s decisions or for policies or practices that Company implements. 

As part of the Services, Company will use techniques and methods that have proven successful in the past, in accordance with reasonable industry standards. This does not, however, guarantee that they will be successful for Agency’s business. Because every audience and product is different, Company cannot guarantee specific performance of the Services.

13. Data Security. To perform the Services, Agency may provide Company with login credentials to certain accounts owned by Agency. Company undertakes reasonable efforts to safeguard this information. At no time will Company claim any ownership right in such accounts. Agency grants Company the authority to access these accounts to complete the Services. Agency understands and agrees that Company is not responsible for any breach of data security for these accounts, and that any information in Agency’s system is subject to the Confidentiality provisions of this Agreement.

14. Indemnification. Agency agrees to defend, indemnify, and hold Company, its affiliated companies and its respective employees, officers, directors, trustees, and agents harmless from and against any and all losses, claims, suits, actions, liabilities, obligations, costs, and expenses (including reasonable attorneys’ fees and costs) which they suffer as a result of (i) the negligence or intentional misconduct of Agency or (ii) Agency’s breach of any provision of this Agreement (including any representation or warranty).  

Agency shall further indemnify, defend, and hold Company harmless from and against any loss, liability, damage, or expense, including reasonable attorney's fees, incurred or suffered by or threatened against Company in connection with or as a result of any claim brought by or on behalf of any third party person or entity as a result of or in connection with Company’s appearance or association with Agency, unless such claim arises from Company’s acts or omissions or arises from or is related to breach of any obligation and/or warranty made by Company hereunder. 


15. Choice of Law and Jurisdiction. This Agreement shall be governed by the laws of Michigan without regard to its conflict of laws doctrine, and applicable federal laws of the United States of America. 


16. Assignment. This Agreement shall not be transferred or assigned, in whole or in part, by either Party to any third party without the express written consent of the other Party. 


17. Notice. Except as otherwise provided in this Agreement, all notices that either party is required or may desire to give the other party shall be in writing to the following addresses. Electronic mail is permissible but will only be considered sufficient notice if the non-sending party affirmatively confirms receipt. 

18. Limitation of Liability. COMPANY AGREES THAT IT HAS USED AGENCY’S SERVICES AT ITS OWN RISK. COMPANY RELEASES AGENCY FROM ANY AND ALL CLAIMS OF DAMAGES THAT MAY RESULT FROM ANY CLAIMS ARISING FROM THIS AGREEMENT, ALL ACTIONS, CAUSES OF ACTION, CONTRACT CLAIMS, SUITS, COSTS, DEMANDS, AND DAMAGES OF WHATEVER NATURE OR KIND IN LAW OR IN EQUITY ARISING FROM THIS AGREEMENT. AGENCY ASSUMES NO RESPONSIBILITY FOR ERRORS OR OMISSIONS IN ANY WRITTEN MATERIALS OR CORRESPONDENCE TO COMPANY. 


19. Miscellaneous. 

  • a)If any of the provisions of this Agreement is or becomes illegal, unenforceable, or invalid (in whole or in part for any reason), the remainder of this Agreement shall remain in full force and effect without being impaired or invalidated in any way. 

  • b) Any rights or obligations contained in this Agreement that by their nature should survive termination of the Agreement shall survive, including, but not limited to representations, warranties, intellectual property rights, indemnity obligations, and confidentiality obligations.

  • c) Any failure of either party to enforce any provision of this Agreement, or any right or remedy provided for tin this Agreement, shall not be construed as a waiver, estoppel with respect to, or limitation of that party’s right to subsequently enforce and compel strict compliance or assertion of a remedy.

  • d) Each party has participated in negotiating and drafting this Agreement, such that if any ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if the parties had drafted it jointly, as opposed to being construed against a party by reason of the rule of construction that a document is to be strictly construed against the party on whose behalf of the document was prepared. 

  • e) The Agreement may be executed in several counterparts, all of which taken together will constitute one single agreement between the Parties. The parties expressly agree that with respect to this Agreement, a facsimile or electronic signature or executed document which has been formatted as a Printable Document Format (PDF) and electronically exchanged shall be binding upon the parties. 

  • f) This Agreement, along with all attachments, represents a single agreement, as well as the entire agreement with respect to the subject matter. This Agreement supersedes any prior agreement between the parties, whether written or oral, with respect to the subject matter, and may be modified or amended only by a writing signed by the party to be charged.

EXHIBIT A:


DESCRIPTION OF SERVICES, TIMELINE, AND COMPENSATION TERMS

Services: 

Company will perform the following services for Agency, according to the combination packages of Theme Park Packages on Company’s website:

  • Consultations regarding

    • Resort, tickets and available dining packages.

    • Restaurant and Magical Extra options.

    • Disney Genie, Disney Genie+ and Lightning Lane options and strategies

  • Preparation of personalized theme park touring plans.

  • Communication of all deliverables to Agency for booking and administration. (Company will not communicate directly with Agency’s clients, unless specifically requested by Agency.)


EXHIBIT B

Agency shall pay Company, a flat fee for consulting and planning services for a Theme Park Package, as follows. Please visit TravelWithNikki.com/Theme-Parks

Alternatively, Agency may direct its clients to pay the package fee directly to Company.

In addition to the package fees, above, Agency shall pay Company commissions equal to twenty percent (20%) of the gross commissions collected by Agency on each commissioned transaction sourced and booked for the Agency’s client, related to Company’s consultation and planning services.

Any VIP Tours arranged by Company for Agency’s clients shall be made under Company’s booking credentials, and Company shall retain 100% of commissions payable from those bookings.

If Company’s prices change during the Term of this Agreement, Company will notify Agency at least 30 days prior to the effective date of the price change.