PROREFERIT S.L.

Referral and Service Agreement

Between PROVIDER, PARTNER and PLATFORM.

1. Parties and contract terms

USER: Any natural or legal person who uses the PLATFORM, whether acting as a business or professional or as a private individual and consumer. Any of the following persons is also regarded as a user for the purposes of using the PLATFORM. The relationship between the PLATFORM and the USERS is governed by the Terms of Use (proreferit.com/en/terms).

PROVIDER: Any natural or legal person who, acting as a business or professional, uses the PLATFORM to manage the cooperation and the referral of customers by the PARTNER and, where applicable, to pay a commission to the PARTNER. In the relationship between REGISTERED USER and PLATFORM, any registered person is regarded as a PROVIDER, even if in their dealings with other providers they act as a partner.

PARTNER: Any natural or legal person who, acting as a business or professional, uses the form provided by the PROVIDER to refer CUSTOMERS to the PROVIDER via the PLATFORM.

PLATFORM: The website developed and operated by the Spanish company PROREFERIT S.L., CIF B26689455, with its registered office at Plaza de la Marina 2, 6th floor left, Málaga.

CUSTOMER: Any natural or legal person who, acting as a business or professional or as a private individual and consumer, uses the form provided by the PARTNER to contact the PROVIDER via the PLATFORM.

THE PARTIES: The PROVIDER, PARTNER and PLATFORM together, in their relationships with each other and as a whole.

INDIVIDUAL COOPERATION AGREEMENT: An annex to this contract setting out the individual details between PROVIDER and PARTNER, where this agreement expressly refers to that annex.

PRICES AND FEES: An annex to this contract setting out the financial details between the PLATFORM and the PROVIDER and fixing the prices and fees that the PROVIDER pays to the PLATFORM for the services provided and the subscriptions taken out.

Terms referring to persons include all genders, orientations, legal forms and entities.

2. Purpose of the contract

The purpose of this contract is to regulate the rights and obligations that apply between the PARTNER and the PROVIDER where the PARTNER introduces the PROVIDER in order to win new CUSTOMERS via the PLATFORM. It also governs the PROVIDER's use of other related products (ProMail and ProInfo).

The PARTNER's activity is therefore limited to the mere introduction of the PROVIDER to third parties and in no case extends to marketing, brokering, negotiating and/or advising, or even to the simple provision of information about the PROVIDER's products or services; these activities are expressly excluded from the purpose of this contract. In no case will the PARTNER present or offer them, or assist in any preliminary procedure or pre-contractual step relating to them.

3. Cooperation and data protection

Accordingly, the PROVIDER will not provide, and is under no obligation to provide, the PARTNER with commercial or descriptive information on the products and services recommended. In order to safeguard the protection of the CUSTOMER's known data, the PARTNER merely sends the CUSTOMER the link to the contact form on the PLATFORM, through which the CUSTOMER may contact the PROVIDER motu proprio, without the PARTNER passing the CUSTOMER's data directly to the PROVIDER. The PLATFORM collects on the form the CUSTOMER's consent to process their personal data and to send the relevant data to the PROVIDER so that the PROVIDER can contact them. The PARTNER, if registered on the PLATFORM, has access to information on the status of the recommendation, including the date and time of the contact via the form, the CUSTOMER's anonymised name and the subject stated on the form. The PARTNER has no access to the text of the message or to other data provided by the CUSTOMER such as first name, email, telephone number, etc.

4. Referral and recommendation of customers

Once the contact form has been sent to the CUSTOMER, the PROVIDER contacts the CUSTOMER directly to offer their services. To this end the PROVIDER records on the PLATFORM the steps taken to offer their services and the progress of the contracting. The PARTNER, if registered on the PLATFORM, has access to this data and will know whether the recommendation has led to services being contracted between the CUSTOMER and the recommended PROVIDER. The PROVIDER records every change in the case on the PLATFORM and without delay records each step leading to a possible commission for the PARTNER. The case may end without commission (for example, if the CUSTOMER does not contract or does not even contact the PROVIDER) or it may end with the commission being fixed in accordance with the following section.

5. Setting, management and payment of commissions

The PROVIDER sets the commission for the recommendation under its own terms laid down in the individual cooperation agreement. A commission may be earned in one or more of the following cases:

  1. on mere contact by the CUSTOMER via the form,
  2. when the CUSTOMER contracts an offered service,
  3. when the CUSTOMER actually pays for the services offered.

In return for the recommendation activity, the PARTNER receives the commissions agreed with the PROVIDER in the individual cooperation agreement. Commissions may be:

  1. A fixed commission set in advance for specific services or, in general, for contracting any services.
  2. A percentage commission on the turnover generated by the recommendation.
  3. A combination of the two options above.

In any event, the PROVIDER reserves the right to change the commissions at any time when, in the PROVIDER's judgement, market conditions so advise, with no requirement other than to notify the PARTNER via the PLATFORM at least fifteen (15) calendar days before the new commissions apply. Changes are notified automatically to the registered PARTNER. If the PARTNER is not registered, the PROVIDER undertakes to communicate the changes properly by email.

Commissions are the only remuneration that the PROVIDER is obliged to pay the PARTNER for their activity, and the PARTNER alone bears all costs incurred in carrying out the activity and running their organisation. VAT or any other applicable tax will be added to the commission amounts, as well as any indirect tax or value added tax applicable to these services.

Commissions are paid only against the relevant invoice, which the PARTNER provides to the PROVIDER via the PLATFORM. Once the invoice has been uploaded to the PLATFORM, the PROVIDER will pay it within the period stipulated in the individual cooperation agreement.

Without prejudice to the individual cooperation agreement, for the purposes of this remuneration arrangement, brokering is deemed to have taken place only in respect of services contracted and provided between the PROVIDER and the CUSTOMER within 3 months of the contact. Consequently, without prejudice to the individual cooperation agreement, the PROVIDER will at no time pay the PARTNER any commission for transactions of any kind that such customers may enter into afterwards or in the future.

6. Review and audit of commissions

The PROVIDER and the PARTNER manage their cooperation through the PLATFORM and expressly authorise it to review and audit the correct settlement of commissions. To this end they consent to the PLATFORM informing the other party through its system of the current status of each case, collecting information from the CUSTOMER on the services contracted and the invoicing arising from the recommendation, assessing the parties' compliance and the correct calculation of commissions and, specifically, carrying out the following operations in order to assess, intervene and mediate between the other two parties:

  • Collecting information from the CUSTOMER, on its own initiative, at random or at the PARTNER's request, on the contracting of services, the invoicing generated and the quality of the services.
  • Using the data received to assess, manually or by automated means, compliance with what has been agreed between PROVIDER and PARTNER as regards the calculation of commissions and the quality of the services provided.
  • Informing the other party of compliance or possible non-compliance, the likelihood of non-compliance and other conclusions drawn from the data collected.
  • Issuing reports to the parties for submission to third parties (authorities, courts, etc.), with information anonymised as regards the CUSTOMER, on whether commissions, payments, non-payments or other relevant data are due.

7. Liability and rights of the parties

PROVIDER and PARTNER are liable to the PLATFORM, and accept responsibility, for any loss, penalty or compensation that the PLATFORM has to bear as a result of either of them failing to comply with the obligations assumed in or arising from this contract, as well as for any reputational damage to the PLATFORM caused by breach of this contract or of the law. The PROVIDER is liable for damages caused to the PLATFORM and claimed from it by third parties as a result of any culpable or negligent act of the PROVIDER.

8. Nature of the contract and independence of the parties

This contract is commercial in nature between all parties. The parties expressly acknowledge that they act as professionals or businesses and that the relationships governed by this contract are entirely excluded from employment law and the employment courts. This exclusion also extends to each party's employees, who may in no case invoke any employment legislation against any other party. The payment of wages, severance payments and social security contributions and, in short, the fulfilment of any employment-related obligation arising from the contractual relationship with the personnel in its service is the sole responsibility of the employer.

This contract creates no relationship of dependency, partnership or agency between the parties, which retain their full independence. The PARTNER carries out the activity provided for in this contract on a non-habitual basis and not as a profession, the referral or recommendation of customers being outside their professional or commercial activity or, in any case, ancillary to their main activity. In any event, each party owns an autonomous business organisation and is directly or indirectly responsible for fulfilling all obligations incumbent on it by law, in particular as regards tax and employment.

Likewise, each party carries out all its activities in its own name, on its own account and at its own risk. No party is ever authorised to act in the name of the other. All expenses and investments incurred by each party in its activity are for its own account, cost and risk, as are all taxes and charges of any kind resulting from its activity. The PARTNER carries out their activity independently, so that there is no relationship of subordination to the PROVIDER.

As regards the contractual relationship between the PROVIDER and the PLATFORM, it should be noted that this is in any case regarded as an automated service (SaaS). As long as the PARTNER merely uses the PLATFORM via the link provided by the PROVIDER, there are no payment obligations between the PARTNER and the PLATFORM, and payment for the services arising from use of the platform is borne exclusively by the PROVIDER. If the PARTNER registers on the PLATFORM, either to track their recommendations or to send their own form to their own partners, the PARTNER becomes a PROVIDER for these purposes, and use of the PLATFORM remains entirely free of charge as long as they do not receive recommendations of their own or take out any subscription plan, which is optional.

As between the PROVIDER and the PARTNER, this contract is non-exclusive and may be supplemented by their own contracts governing the relationship between them. These contracts do not change, limit or extend the obligations they have towards the PLATFORM under this contract. Any contract between them must in all cases be in writing; verbal or unwritten agreements are excluded.

9. External representation

The PARTNER may not, without express authorisation, use in their emails, websites, publications, business cards or any other document of their own the name, trademarks or logos belonging to the PROVIDER, or whose similarity to them may cause confusion among recipients. In this respect, without prejudice to the following paragraph, cooperation by recommendation is limited to the mere sending of the form to the CUSTOMER.

PROVIDER and PARTNER may agree on closer cooperation through the "my Partners" option, which allows:

  1. The PARTNER to include on their own website or similar platform, including blogs, podcasts, videos, etc., the representation card provided by the PLATFORM by embedding HTML text or an iframe. This links directly to their contact form.
  2. The PARTNER to include the PROVIDER's representation card in the "my Partners" section of their website. This section shows the representation card alongside the other partners.

Both options require authorisation through the PLATFORM by the PROVIDER and active inclusion, either via the "my Partners" section or by the PARTNER actively embedding the representation card. Either party may revoke the authorisation or withdraw the inclusion of the representation cards at any time, with no notification other than that given by the PLATFORM itself and without the other party being able to claim any compensation. If the PLATFORM's own mechanism does not do so automatically, the PARTNER will remove without delay any mention of the PROVIDER once the authorisation has been withdrawn.

10. Confidentiality

The PARTIES are prohibited from disclosing any commercial, technical or financial information that could benefit the interests of a company competing with the other parties. The PARTIES will also oblige their employees and collaborators to maintain the same confidentiality. The PROVIDER, for its part, undertakes to keep in strict secrecy any information that comes into its possession relating to the organisation, business activity and operation of the PARTNER, except where legally required. The undertakings assumed by the parties in this clause will continue indefinitely and after the end of this contract.

11. Term and termination

This contract is of indefinite duration, without prejudice to the following provisions:

A) Relationship between PROVIDER and PARTNER

The PROVIDER may terminate this contract at any time and without giving a reason, with any possibility of compensation in favour of the PARTNER excluded. Termination is notified via the PLATFORM provided the PARTNER is registered on it. If the PARTNER is not registered on the PLATFORM, the PROVIDER may give notice of termination by email, undertaking in this case to deactivate the PARTNER's form on the PLATFORM once notice has been given.

Once the contract between PROVIDER and PARTNER has been terminated, the PLATFORM deactivates the contact form, so that it can no longer be used by new CUSTOMERS. The PROVIDER is responsible for handling and, where applicable, remunerating the recommendations received up to that point, and for processing pending recommendations and commission payments as normal.

The PARTNER may suspend the contract simply by making no further recommendations to their CUSTOMERS, and may terminate it by email to the PROVIDER. Once the PARTNER has given notice of termination, the PROVIDER undertakes to deactivate the PARTNER's contact form and to settle and pay the last recommendations.

B) Relationship between PROVIDER and PLATFORM

Both the PROVIDER and the PLATFORM may terminate this contract at any time and without giving a reason, with any possibility of compensation excluded for ordinary termination under this section. Termination must be made through the PLATFORM itself, and termination by email is accepted only where it is impossible to use the PLATFORM. Termination by the PLATFORM requires one month's notice so that the PROVIDER can save and download their information from the PLATFORM. The PROVIDER's notice period depends on whether they use the version without a subscription or one of the paid subscriptions. If the version without a subscription is used, the PROVIDER may terminate without notice and the PLATFORM proceeds to immediate deactivation. At the time of deactivation the PROVIDER is informed that they must save and download their data beforehand if they wish to keep it. If any paid subscription is used, the notice period equals the days remaining until its renewal (normally monthly), and the next renewal is cancelled. Deactivation takes effect at the end of the subscription period.

The PLATFORM may terminate the contract by extraordinary termination on any of the following grounds on the part of the PROVIDER:

  • Breach of any of the clauses of this contract.
  • Non-payment for services provided.
  • Non-payment of subscriptions taken out.
  • Where the PROVIDER does not act with due diligence or with loyalty and good faith and the image of the PLATFORM is, or may be, adversely affected.
  • Where the PROVIDER infringes the code of good practice attached as annex 2.
  • Where the PROVIDER or the PARTNER begins or maintains, in the PLATFORM's judgement, a professional or commercial activity that is incompatible with the subject matter of this contract for reasons of image or conflict of interest.

In the event of extraordinary termination, the PLATFORM may terminate the contract on the terms of ordinary termination and in addition adopt the following precautionary protective measures:

  • Suspension of the services while maintaining access so that the PROVIDER can access and save their data before the contract is terminated and the data consequently deleted.
  • Immediate precautionary suspension of access to the services where there may be a risk of evidence being destroyed, a risk of the data being used for any criminal or other unlawful purpose, or where a competent authority so requires. In these cases the data is not deleted, so that it can be kept as evidence.

C) Relationship between PLATFORM and PARTNER

There is no financial relationship between PLATFORM and PARTNER, so either may contact the other by email. A PARTNER who registers on the PLATFORM is regarded for these purposes as a PROVIDER and the preceding section applies.

12. Compensation

Ordinary termination of the contract does not give rise to any compensation in favour of the other parties as a result of the activity carried out under it.

13. Personal data protection regime

The personal data protection regime between the PLATFORM and the USERS is set out in the Privacy Policy (proreferit.com/en/data).

The PROVIDER uses the PLATFORM either by supplying the necessary data of their customers for the functions to work, or by using the PLATFORM's functions to collect data by generating contact forms. In this respect the PLATFORM always acts as a data processor of the PROVIDER's data, the PROVIDER being the controller of the data within the meaning of the GDPR, the LOPD and GDD. To this end, the relevant Data Processing Agreement (DPA) (proreferit.com/en/dpa) is necessarily signed as part of registration.

The signatories, the representatives of the legal entities party to this contract and the contact persons have been informed that their personal data will be processed by THE PARTIES, respectively, for the sole purpose of managing and carrying out this contract, on the legal basis of the parties' legitimate interest. These signatories and representatives may exercise their rights of access, rectification, objection, erasure, restriction and portability through the respective address or email. The parties will also inform all employees whose data must be processed or communicated in carrying out and complying with the services arising from this contract of the content of this clause.

14. Assignment

None of the parties may assign this contract, or the obligations or rights arising from it, in whole or in part, without the prior written consent of the others.

15. Applicable law and dispute resolution

This contract is governed by Spanish law, and Law 12/1992 of 27 May on agency contracts does not apply in any case. Waiving any other jurisdiction to which each party might be entitled, the parties submit any dispute arising from this contract to the jurisdiction of the courts and tribunals of Málaga (Spain). In the relationship between PARTNER and PROVIDER, the claimant may choose between the courts and tribunals of Málaga and those of the defendant. The terms and conditions of this contract replace any other previous contract between the parties, the only valid legal relationship between PROVIDER and PARTNER being cooperation in introducing new customers to the PROVIDER. The law applicable to all relationships is Spanish law, unless the PROVIDER and the PARTNER agree that another law governs their relationship.

16. Notices

Communication between THE PARTIES takes place via the PLATFORM or digitally by email. Email may also be used for legally valid communications such as terminations of the contract, payment demands, etc.; correct delivery to the recipient's server is sufficient proof of sending. In the case of the PLATFORM, the email address is [email address of the platform] and, in the case of the PROVIDER, the email address used to register on it.

17. Non-disclosure agreement (NDA)

Since the reinforced guarantees between THE PARTIES not to disclose information about their data and affairs may in practice give rise to attempts at blackmail through false reviews and defamation, the confidentiality obligation also expressly includes, for THE PARTIES, the obligation not to speak publicly (except in public court proceedings) in a negative way about the other parties, whether personally or indirectly through third parties. A publication is regarded as negative if it contains a rating below 80 % of the possible points, describes negative experiences or advises against the services. THE PARTIES reserve the right to report any attempt at blackmail. All this is without prejudice to bringing out-of-court claims in confidence between the parties and to bringing whatever legal action each party considers appropriate.

18. Conclusion of the contract

The PARTIES conclude this contract through the PLATFORM, the signature being validated by the procedure established for registration on the platform (PLATFORM and PROVIDER) and for approval of the cooperation and sending of forms (PROVIDER and PARTNER). The PLATFORM will provide the other parties with the means to access the signed contract.

19. Regulatory compliance

As regards compliance with and prevention of criminal liability, money laundering, terrorist financing and corruption, the parties confirm that they have appropriate prevention mechanisms in place and, above all, the PROVIDER affirms that it will make payments to the PARTNER only when it knows or has correctly identified them.

20. Updates and contract language

The PLATFORM reserves the right to update this contract from time to time, mainly to adapt it to legal and economic changes. The current version is published at http://www.proreferit.com/en/contract and takes effect on publication.

In the event of discrepancies between the texts in different languages, the Spanish version prevails, owing to the location of the PLATFORM's registered office.