Recitals

Perch designs, markets, and sells, directly and indirectly, products and services related to fitness equipment. This Referral Agreement is intended to govern the process for individuals or entities who wish to refer potential customers to Perch.

Section A: Agreement for Referral Partners

This section applies to individuals or entities who refer potential customers to Perch and wish to receive a referral fee for successful sales.

1. Appointment

For the term of this Agreement, Perch hereby appoints you as a referral partner for the promotion of Perch Products to potential new customers.

2. Responsibilities of the Referral Partner

Introduction of Potential Customers: Introduce Perch to qualified customers by following the correct protocols as outlined in Exhibit B, ensuring a smooth customer introduction to Perch.
Sales Process Involvement: Assist in the sales process if requested by Perch. Avoid discussing pricing with potential customers and refer them to a Perch representative for accurate pricing.
Stay Informed on Products: Remain updated on Perch’s product offerings to avoid misrepresentation of functionality and pricing by reviewing materials provided by Perch on a quarterly basis.
Notification of Issues: Promptly notify Perch of any complaints or claims received regarding Perch or the Products.

3. New Customer Discount

If a referred customer completes a purchase of Perch Products, they will receive a 5% discount on the net sale amount (i.e., the total after deducting charges for shipping, taxes, etc.). This discount is exclusive to the initial purchase and cannot be combined with other offers.

4. Product and Pricing

Fees. In connection with the sale of Products to a Customer, which Perch will invoice directly to the Customer, Perch agrees to pay the Partner a fee of 5% for each sale (referred to as a "Sale Fee"). This Sale Fee will be calculated based on the net amount of the sale (referred to as the "Sale Amount"). The net amount is defined as the total amount actually paid by the Customer, after deducting charges for shipping, handling, delivery, installation, freight, and taxes. No Sale Fee will be paid for any sales made after this Agreement has expired or been terminated.
Fees for Perch Customer: If the Partner is an existing Perch client and prefers to allocate the Sale Fee to the organization where they are employed, the Sale Fee will be credited to the next invoice issued to that organization.
Fee Distribution. If you are reviewing this document on behalf of a company, At least 50% of the fee collected by Partner in connection with the sale of the Products to an applicable Customer shall be distributed to the sales rep(s) responsible for referral and sale.
Fee Payment Terms. A Sale Fee shall be paid to Partner within thirty (30) days of Perch’s receipt of the full Sale Amount from the applicable Customer.
Invoicing. The Partner acknowledges and agrees that each Customer will be invoiced directly by Perch in relation to amounts payable by that Customer under the relevant Customer Contract. The Partner shall not invoice any Customer in relation to amounts payable by that Customer under the relevant Customer Contract.
Additional Purchases. The Sale Fee will exclude, without limitation, any fees payable for Perch Products not part of the initial equipment purchased by the Customer, or Perch Software not being the initial software licensed to the Customer, under the applicable Sales Agreement.

5. Relationship and Reporting

Relationship. Partner acknowledges that it is and will be an independent contractor and not an employee, partner or joint venture of or with Perch, and is not and will not be subject to the control of Perch, nor shall Perch have the right to control or direct the details, manner or means by which Partner accomplishes its obligations as set forth herein.
Conduct of Business. Partner shall conduct all of its business in its / his / her own name and, consistent with the provisions of this Agreement, in such manner as it may reasonably deem fit.
Trademarks and Trade-names. Each party agrees not to use in any way, or to remove, alter or change in any way, any of the other party’s trademarks, trade-names, logos or other commercial symbols, including those contained on any of the products, packaging or otherwise, without the prior written permission of the other party, which may be withheld in such party’s sole discretion.
Records and Reporting. Perch and Partner shall maintain complete and accurate records in connection with their performance under this Agreement, reflecting each Product sold and referred for sale, respectively, pursuant to this Agreement, and Perch shall make available for inspection and audit by Partner all records of all orders and sales of the Products. All records shall be kept in accordance with generally accepted accounting principles. The parties shall retain all records in connection with this Agreement according to their respective policies and procedures then in effect.

6. Liability and Indemnity

To the maximum extent permitted by law:
- Perch and its Affiliates are not liable to the Partner or to any other person for any indirect, incidental, special or consequential loss or damage, loss of profits (or anticipated profits) or business or business opportunity, loss of data, or damage to goodwill or reputation, irrespective of whether the loss or damage is caused by or relates to breach of contract or tort (including negligence) or otherwise or a party or any other person was previously notified of the possibility of the loss or damage; and
- The maximum aggregate liability of Perch for all claims made by the Partner under or in connection with this Agreement for all losses (including, without limitation, Losses), regardless of how they arise (including liability for breach of contract or negligence), is limited to the amount of Fees paid by Perch to the Partner in the 3 month period immediately prior to the event giving rise to the Partner's first claim.
The Partner (during and after the Term) indemnifies and holds harmless Perch, and their respective licensors, and their respective Personnel (“Indemnified Persons”) from and against all Claims involving, and Losses incurred, suffered or sustained by, the Indemnified Persons as a result of the acts or omissions of the Partner, its Affiliates or any of their respective Personnel, including any breach of this Agreement by the Partner.
Compliance with Laws. The parties hereby agree to comply with all applicable federal and state laws, ordinances, and administrative rules and regulations in the performance of their obligations under this Agreement.

7. Intellectual Property, Data, and Confidential Information

Pursuant to the sale of the Products, and during the course of its performance of this Agreement, Perch may have access to and/or process end user’s personal information.
Perch shall use commercially reasonable efforts to at all times comply with industry best practices, all applicable material data protection laws, and reasonable guidelines for privacy, information protection and data and systems security, including, but not limited to, the EU’s General Data Protection Regulation (“GDPR”) requirements, if applicable.
Perch shall promptly (but in no event later than 7 days) notify Partner if Perch has reason to believe that there has been a data breach/data security incident relating to information provided pursuant to this Agreement.
Perch shall provide the necessary privacy notices under applicable data privacy laws to and obtain the appropriate privacy consents from users of the Products that are sold in connection with this Agreement.
Confidential Information: For the purposes of this Agreement, 'Confidential Information' refers to any and all information disclosed by one party to the other, including but not limited to business, technical, financial, or customer information, regardless of whether it is marked as 'confidential'. Confidential Information does not include information that: (i) is or becomes publicly known through no breach of this agreement by the receiving party; (ii) is received from a third party without breach of any obligation of confidentiality; (iii) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information; or (iv) is required to be disclosed by law, provided that the disclosing party is given prompt notice and the disclosure is limited to the required extent
- A party (“Receiving Party”) who receives Confidential Information from or in relation to the other party (“Disclosing Party”) must:
  - Not use or attempt to use that Confidential Information in any manner which may injure or cause loss to the Disclosing Party (or which may be likely to do so); and
  - Keep that Confidential Information confidential and not disclose that Confidential Information to any person.
- A Receiving Party may disclose Confidential Information:
  - to those of its Personnel or advisers who have a “need to know” that Confidential Information for the purpose of this Agreement, provided that all such persons are first made aware of the confidentiality obligations imposed under this Agreement and are bound by obligations of confidentiality at least as restrictive as those imposed on the Receiving Party under this Agreement;
  - if required to make such disclosure by any court of competent jurisdiction, pursuant to any court order, or pursuant to any law or regulation, but only to the extent necessary to comply with the foregoing and provided that the Receiving Party gives notice to the Disclosing Party as soon as practicable (to the extent legally permitted to do so) after it becomes aware of the need to make disclosure.

8. Terms and Termination

Term. This Agreement shall commence on the Effective Date and shall continue for a period of twelve (12) months, at which time it shall renew automatically, unless terminated by either Partner or Perch.
Termination for Cause. Either party shall have the right, notwithstanding the provisions of this Section 8, to terminate this Agreement immediately by written notice to the other party following the occurrence of any of the following events with respect to the other party (the “Affected Party”):
- If Perch fails to pay any amounts payable hereunder within thirty (30) days of the due date for payment;
- If the Affected Party fails to perform any other material obligation under or in relation to this Agreement as and when required and where, in the case of any such failure that is capable of remedy, such failure continues for a period of thirty (30) days thereafter;
- A change occurs in the ownership or control of either party or its management which change is deemed by the other party to be adverse to such party’s interests;
- If an effective resolution is passed for the winding up or dissolution of the Affected Party;
- If the Affected Party fails to pay its debts as they fall due, with due regard to the provisions set forth in item (1) above, or becomes insolvent or the Affected Party proposes or enters into any composition or arrangement with its creditors.
- If the Partner, who became a referral partner by virtue of being a Perch customer, ceases to be a Perch customer..
Either party may terminate this Agreement for any or no reason so long as the terminating party is then in compliance with the terms of the Agreement and gives the other thirty (30) days’ notice of such termination.
Upon expiration or termination of this Agreement, all provisions of this Agreement shall terminate, except that Section 6, 7 and 8 shall survive according to their respective terms. No fees shall accrue on sales occurring after the expiration or termination of this Agreement.
Commission Eligibility on Customer Introduction: In connection with the sale of Products to an applicable Customer introduced by Partner, if such a sale does not close within 180 days from the date of introduction, the Customer will no longer be eligible for commission under this Agreement. For clarity, no Sale Fee shall accrue for any transaction involving such Customer that is finalized after this 180-day period.
Sale Fee Applicability on Customer Transition: For avoidance of doubt, the Sale Fee is connected to the “Customer,” which is the entity in which the person works. If the Customer transitions to a new organization, and that organization makes a purchase, they will not be eligible for a commission under this Agreement. However, Perch recognizes the complexity in such situations and will make all reasonable efforts to treat our partners fairly and equitably in circumstances involving organizational changes.

9. Miscellaneous

Law and Dispute Resolution. This Agreement will be governed by, and construed in accordance with, the laws of the Commonwealth of Massachusetts without regard to its laws or regulations relating to conflicts of law. Each Party hereby irrevocably consents to the exclusive jurisdiction of the courts of Middlesex County, Massachusetts and the federal courts situated in Massachusetts in connection with any action or dispute arising between the Parties under or in connection with this Agreement.
Notice. All notices and other communications under this Agreement shall be in writing and may be given by any of the following methods: (a) personal delivery; (b) registered or certified mail, postage prepaid, return receipt requested; (c) reputable overnight delivery service or (d) email. Notices shall be sent to Perch at the appropriate party at its address given below and to Customer at the address provided in the applicable Purchase Order (or at such other address as specified by notice):

Section B: Agreement for New Customers

This section applies to individuals or entities who have been referred to Perch by a Referral Partner and wish to receive a discount on their purchase.

1. Discount Eligibility

If you have been referred to Perch by a Referral Partner, you are eligible to receive a 5% discount on your initial purchase of Perch Products. This discount applies to the net sale amount, which is the total sale price after deducting charges for shipping, handling, taxes, and other fees.

2. Discount Conditions

One-Time Discount: The 5% discount is only applicable to the initial purchase and cannot be combined with any other promotional offers or discounts unless expressly authorized by Perch.
Non-Transferable: The discount is non-transferable and cannot be applied to future purchases or shared with others.
Returns and Refunds: If any products purchased with the discount are returned, Perch reserves the right to adjust or revoke the discount, especially in cases of misuse or fraudulent activity.

3. Purchase Process

Referral Link: To receive the discount, you must use the referral link provided by the Referral Partner. This ensures proper tracking and attribution of the referral.
Verification: Perch may verify your referral status to ensure eligibility for the discount.

4. Responsibilities of New Customers

Accurate Information: Provide accurate information during the purchase process to ensure eligibility for the discount.
Use of Referral Link: Ensure that the referral link is used when contacting Perch.

Perch Refer and Earn Program