Go Directly to Referral Partner Program Terms of Use

TERMS OF USE

Effective Date: September 4, 2023

We are Empire Flippers, LLC (“Empire”). We take the friction out of buying and selling online businesses.

This Terms of Use Agreement (“Agreement”) contains important provisions regarding the use of empireflippers.com (the ‘Website”) and all other services, including the brokerage services to sell assets related to a website or other online business through Empire Flippers (the “Services”). You should review this Agreement carefully before deciding whether to use Empire’s Services, including but not limited to listing assets or purchasing assets through the Services. If you do not agree to the terms contained within this Agreement, you should not use Empire’s Services or Website.

THIS AGREEMENT IS A LEGALLY BINDING CONTRACT AND YOU HAVE A DUTY TO READ THIS AGREEMENT BEFORE USING THE WEBSITE OR SERVICES. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE YOUR USE OF THE WEBSITE OR SERVICES. EMPIRE RESERVES THE RIGHT TO MODIFY, AMEND, REPLACE, SUSPEND, OR TERMINATE THIS AGREEMENT AT ANY TIME AND WITHIN ITS SOLE DISCRETION. IN THE EVENT EMPIRE MODIFIES, AMENDS, OR REPLACES THIS AGREEMENT, THE EFFECTIVE DATE, LOCATED ABOVE, WILL CHANGE. YOUR USE OF THE WEBSITE OR SERVICES AFTER A CHANGE IN THE EFFECTIVE DATE CONSTITUTES YOUR ACQUIESCENCE TO AND ACCEPTANCE OF ANY MODIFICATION, AMENDMENT, OR REPLACEMENT.

Buying and Selling through Empire Flippers
1. A “User” is a person or business that has registered an account with Empire and has consented to this Agreement.
2. A “Seller” is a User that has submitted a Business for sale through Empire’s Services.
3. A “Buyer” is a User that has Unlocked the Confidential Information about a Business.
4. A “Business” is a reference to the Seller’s overall business function offered under one or more brand names, including all related assets required to operate the business, but specifically excluding any equity interests (stock, membership interests, etc). A non-exhaustive list of assets includes:
  1. All accounts associated with the Business, including all associated accounts, content, data, customer lists, databases, files, and artwork;
  2. All general intangibles of the Business, including payment intangibles;
  3. All instruments of the Business, including promissory notes, books and records, customer lists, email lists and other files related to the Business;
  4. All letters of credit and letter-of-credit rights and supporting obligations;
  5. All inventory of the Business, including raw materials, finished goods, packaging, and, inventory deposits, if any (“Inventory”);
  6. All relevant domain names and associated domain name registrations (“Domain Names”);
  7. All rights in, arising out of, or associated with any patents, patent applications, trademarks, service marks, brands, logos, trade dress and all trademark applications or registrations, copyrights and works of authorship, copyright applications or registrations, trade secrets, know-how, inventions, technical information, computer programs, data, databases, applications, code, source code, rights of publicity, and all other intellectual property or proprietary rights (“Intellectual Property”)
  8. All licenses for applications or plugins used in connection with the Business;
  9. All prepaid expenses and subscriptions associated with the Business; and
  10. All goodwill and the going concern value of the Business.
Modifications to this Agreement. Modifications to the terms of this Agreement will not be binding unless acknowledged and agreed to in a writing by the relevant parties. Agreements to alter the terms made through ZenDesk, email, through the Website, or other electronic writing shall be considered a writing for purposes of amending this Agreement. No oral modifications are permitted.
Requirement to Register an Account with Empire.
1. In order to use Empire’s Services, you are required to register an account with Empire and consent to this Agreement. Users are permitted to use their account only and are expressly prohibited from providing third parties with access to a User’s account. You agree that in registering an account with Empire, you will provide Empire with accurate, complete, relevant, and current information. Users are solely responsible for maintaining the security and confidentiality of their usernames and passwords. In the event a User account is accessed without a User’s consent, Users are required to immediately provide Empire with written notice.
2. By registering an account with Empire, you agree Empire may contact you through the details you provided, including but not limited to phone and email and SMS, however, you will be authorized to opt out of future emails and SMS.
3. By registering an account with Empire, you warrant and agree that you are either above the age of majority in your nation, state, province, territory, or city, or the age of eighteen (18), whichever is greater. You warrant that you are of sound mind, have the capacity to contract, and agree to the terms and conditions contained within this Agreement.
4. By registering an account with Empire, Users warrant and represent they have the full power and legal authority to execute this Agreement. If a User is making this representation on behalf of a business entity or third party, the User warrants that he or she has actual authority to act as an agent of that business entity and third party and have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity.
5. Sellers represent warrant they have full unencumbered title to the Business to be sold through Empire’s Services, or that any encumbrance will be fully disclosed to Empire and/or any Buyer.
6. Buyers represent and warrant they have sufficient funds to complete the purchase of any Business in which they make an offer to purchase.
7. Buyer and Seller represent they are not subject to any voluntary or involuntary petition or proceeding under any bankruptcy, reorganization, insolvency, or similar law relating to the relief of creditors or debtors.
Empire’s Right to Terminate Users. Empire retains the discretion to terminate this Agreement and ban Users from Empire’s Services if a User is in breach of the Agreement, Empire has grounds to believe a User is a repeat violator of this or previous Agreements, or for other grounds based on Empire’s sole discretion that a User will cause damage or injury to other Users or Empire. Users are expressly prohibited from contacting other Users for purposes unrelated to the Services, including, but not limited to soliciting Users for sales of products or other services.
PROCEDURE AND RULES FOR SUBMITTING BUSINESS FOR LISTING AND THE LISTING PRICE
Process to Submit a Business for Listing with Empire.
1. The first step to listing a Business for sale is submitting information regarding the Business to Empire who, in its sole discretion, will approve or reject the Business for listing on the Website and participation in the Services. Empire reserves the right to reject any submission for any reason or no reason at all.
2. Non-Disclosure of Seller Information. In the course of Empire’s vetting process, Seller will provide Seller’s Confidential Information, as defined below, to Empire.
  1. “Seller’s Confidential Information” shall mean non-public, proprietary information revealed by Seller to Empire relating to an applicable Business being submitted to Empire including, but not limited to: (i) information expressly marked or disclosed as confidential, (ii) all forms and types of financial, traffic, user, and/or other business information, (iii) certain details relating to the Business listing, including the relevant URL; (iv) the Seller’s profits and losses or balance statement, and (v) other information related to the Business of a type and character reasonably expected to confidential.
  2. Seller’s Confidential Information will not include information that is: (i) developed by Empire independently from the Seller and not based upon or derived from information provided or delivered by the Seller; (b) rightfully obtained by Empire from a third party without restriction; or (c) publicly available other than through the Seller in violation of the terms of this Agreement.
  3. Seller’s Confidential Information will at all times be, and will at all times remain, the property of the Seller and all applicable rights, including, but not limited to, all intellectual property rights, rights of publicity, or other personal or proprietary rights embodied in the Seller Confidential Information will remain in the Seller.
  4. Empire agrees that it will treat all such Seller Confidential Information as confidential and will not disclose such Seller Confidential Information to any third party except: (i) Empire will provide this information to Buyers consistent with this Agreement, including but not limited to Section 8; (ii) Empire may disclose the Seller Confidential Information to its employees, agents, attorneys, accountants, officers, and directors (“Representatives”) in connection Empire’s services; and (iii) in the event that Empire is required to disclose any Seller Confidential Information, and, when possible pursuant to statutory or regulatory authority, Empire will provide the Seller with prompt written notice so that the Seller may seek a protective order or waive compliance by Empire with the provisions of this Agreement. If, in the absence of a protective order or the receipt of a waiver hereunder, Empire is nonetheless, on the advice of its counsel, legally required to disclose the Seller Confidential Information, Empire may disclose such information without liability hereunder.
3. Users submitting a Business to Empire understand and agree that Empire will rely on the facts and representations submitted. User agrees to provide Empire with all relevant information, as determined in Empire’s discretion, related to the operation of the Business, including, but not limited to, any relationship with distributors, affiliates, dropshippers, view-only access to relevant information, or any other material information regarding the Business. This information will be truthful, accurate, current, and complete. Empire reserves the ability to ask Users for additional information about their Business, including but not limited to the Seller Agreement Form, or other similar set of questions. The User agrees to provide complete and truthful information to all of Empire’s questions. User agrees Empire may share any information provided with independent third parties in connection with the vetting process.
4. Empire may provide Users with the ability to upload or transmit user-generated content in association with the Business, including, but not limited to, text, comments, photographs, images, videos, audio files, profile information, name, likeness, advertisements, listings, information, and designs (collectively “User-Generated Content”). Except as otherwise provided herein, Users warrant that they own all rights in and to the User-Generated Content. By submitting User-Generated Content to Empire, Users grant Empire a non-exclusive, irrevocable, royalty-free, worldwide, and perpetual license to use the User-Generated Content for the customary and intended purposes of the Services. These purposes may include, but are not limited to, providing third parties with the Services and archiving or making backups of the Website. Users agree to waive all moral rights in and to the User-Generated Content across the world, whether or not Users have asserted moral rights in or to the User-Generated Content. By submitting User-Generated Content, Users further agree to waive all rights of publicity or privacy with respect to the User-Generated Content. Users warrant that any User-Generated Content submitted will not violate the rights of third parties, including, but not limited to, trademark rights, copyright rights, and rights of publicity and privacy, or violate any applicable law, statute, ordinance, treaty, or regulation, whether local, state, provincial, national, or international.
5. Users agree to be cooperative and provide reasonable assistance while the Business is being evaluated, including but not limited to answering inquiries from potential purchasers or Empire within forty-eight hours, and acting in a professional and courteous manner at all times. Users also agree to provide details about availability for sales calls, to attend those calls, and that those calls may be recorded. User agrees to direct all third-party communication regarding the sale of its Businesses to Empire.
6. Some Businesses involve special circumstances, including but not limited to the following:
  1. If the Business uses paid traffic, the entire ad account must be transferred to the Buyer; and
  2. If an Amazon asset is included in the sale, all Amazon accounts linked to the Seller’s email address must be included in the sale (excluding Amazon Associates businesses).
7. Unless Users expressly disclose specific facts indicating otherwise in writing to Empire in connection with the submission of a Business, by submitting your Business to Empire, Users represent and warrant that:
  1. They have clear and unencumbered title to the Business and any related assets to be sold through Empire, including all intellectual property rights;
  2. They have not placed the Business to be sold subject to a mortgage, pledge, lien, or encumbrance, except for those taxes which shall be prorated as of the Sale Date;
  3. They are not subject to any voluntary or involuntary petition or proceeding under any bankruptcy, reorganization, insolvency, or similar law relating to the relief of creditors or debtors;
  4. The information you have provided to Empire in connection with the Business is true, accurate, current, and complete, and you have not omitted any material information regarding the performance or value of the Business; and,
  5. To the best of a User’s knowledge, there is no lawsuit or pending claim or charge against the Business.
8. Users acknowledge, understand, and agree that if Sellers of Amazon FBA businesses are not permitted to use the legal entity and/or EIN associated with the account being sold for subsequent Amazon accounts.
Approval of Business for Listing and the Exclusive 2-Month Listing Term.
1. After review of the Business, Empire will recommend a listing price for the sale of the Business (“Listing Price”). Empire Flippers is a fixed price marketplace and the list price is the maximum a Buyer can pay for a Business in an all-cash transaction. The User’s Business will not be listed for sale until the User agrees to the Listing Price. If the User does not agree with the Listing Price, the User is not under any obligation to list its Business with Empire.
2. The Business has been “Listed” once it appears on the Website, which is also referred to as the “Listing Date.” Users and Sellers expressly grant Empire an exclusive right to list, market, or advertise the Business for sale for a period of two (2) months from the Listing Date or after expiration of that two-month period, as long as the Business is Listed on Empire’s Website (“Listing Term”). Users understand and agree they may not cancel or other terminate the Listing Term except as provided in this Agreement.
3. Sellers warrant and agree that Empire is the sole and exclusive listing agent for the Business during the Listing Term and that the Business may only be sold by and through Empire during the Listing Term. Sellers may not, directly or indirectly, list, solicit offers, or attempt to sell its Business using any other service, person, or agent for the duration of the Listing Term. Seller agrees Empire may syndicate its listing of a Seller’s Business on third-party websites.
4. During the Listing Term, Seller agrees to continue to operate and maintain the Business in the same manner in which it was operated and maintained prior to the Listing Term, including, but not limited to, taking any and all actions necessary to retain the Business value, which may include, but is not limited to, continued marketing efforts, advertising expenses, customer service, maintaining third-party links, and/or other maintaining any other traffic, revenue, distribution, or referral source, if applicable. Seller agrees not to take any actions outside of its normal business practices or that would otherwise impair or impede the transfer or the value of the Business throughout the Listing Term.
5. During the Listing Term, Sellers agree to maintain accurate and up-to-date business records and to provide the same to Empire in a timely manner upon request.
6. Empire will review and update the Listing Price approximately every month. Seller agrees to timely respond to Empire’s communications regarding updated Listing Prices. Unless otherwise agreed, if Seller fails to respond within 72 hours of Empire’s communication, Seller is deemed to have consented to the updated Listing Price, if any.
7. Empire reserves the right to designate any Business as a “Select Listing,” in which Buyers shall have a period of seven business days from the Listing Date to provide a letter of intent. The Seller of a Select Listing shall then select Buyers for more substantive conversations regarding a potential sale. If Seller does not select a Buyer, Seller shall return to the general sales process in accordance with this Agreement. In the event the terms of this Agreement for a Select Listing conflict with other terms of this Agreement, this specific Select Listing language shall control.
The Listing Price is an Offer to Sell and Sellers Have Accepted Offers at the Listing Price; Purchase Price
1. By agreeing to the Listing Price, as updated, and having your Business Listed, Seller is expressly offering to sell the Business at or over the Listing Price, plus the cost of any associated Inventory related to the Business, in an all cash, single lump sum payment.
2. Seller is deemed to have accepted an offer that is all cash in a single lump sum payment at or over the Listing Price, plus the cost of any associated Inventory with the Business.
3. Empire will communicate all below Listing Price offers to Seller. If Seller accepts the below Listing Price Offer, Seller’s acceptance is incorporated into this Agreement as if fully stated herein.
4. Seller has the option to circulate selected below Listing Price offers (“Selected Offers”) to other Buyers that have an Active Unlock on the Business (“Other Active Unlocks”). If Seller elects to circulate a Selected Offer to Other Active Unlocks, Empire will provide those Other Active Unlocks twenty-four hours from such communication to beat the Selected Offer (the “Competing Offer”). However, all Competing Offers must be 10% or more than the Selected Offer but not to exceed the Listing Price. In the event the Selected Offer is 10% or less than the Listing Price, the Competing Offer must be equal to the Listing Price.
5. The “Purchase Price” is the total consideration paid in connection with the sale of the Business, not including inventory costs, if any.

PROCEDURE AND RULES FOR UNLOCKING AND MAKING OFFERS TO BUY A BUSINESS

Unlocking the Details Related to a Business Listed for Sale; Liquidated Damages
1. Empire only discloses non-public information relating to a specific Business after a User has “Unlocked” that information by consenting to this Agreement and following the process to Unlock the Business as displayed on the Website, which may be amended from time to time, which generally includes a process to submit a payment to Empire or provide proof of funds. A User is required to specifically Unlock each Business it is interested in purchasing. Businesses that a User or Buyer has Unlocked are referred to as the Unlocked Businesses. Users shall be defined to include individuals acting on behalf of a business entity or another person, and agree this Agreement constitutes a legal, valid, and binding agreement.
2. A Buyer will be provided Confidential Information only after the Business has been Unlocked. “Confidential Information” shall mean non-public, proprietary information revealed by Empire or Seller of an applicable Business listing (whether in writing, orally or by any other means) including, but not limited to, (a) information expressly marked or disclosed as confidential, (b) all forms and types of financial, traffic, user, and/or other business information, (c) any and all details relating to the Business, Empire, or the Seller of an applicable Business listing, including the relevant URL, the Seller’s profits and losses or balance statement, Seller’s contact information, and any other information related to the Business. This provision is intended to be broadly construed such that all non-public information obtained by a User or Buyer will be considered Confidential Information.
3. Confidential Information will at all times be, and will at all times remain, the property of the providing party and all applicable rights, including, but not limited to, all intellectual property rights, rights of publicity, or other personal or proprietary rights embodied in the Confidential Information will remain in the providing party. Buyer agrees that it will treat all such Confidential Information as confidential and will not disclose such Confidential Information to any third party; provided, that a Buyer may disclose the Confidential Information to its Representatives (as defined below) who have a need to know such information in connection with the evaluation of the Business. A Buyer shall use at least the same degree of care to avoid disclosure of such Confidential Information as it would use with respect to its own confidential information of like importance.
4. A Buyer shall not use Confidential Information for any purpose other than to evaluate the Business for purchase. A Buyer will prohibit all third-parties that come into possession of the Confidential Information as a result of their access to it from using it for any purpose other than to evaluate the Business for purchase, including agents, financial advisors, employees, contractors, officers, and directors (collectively, “Representatives”). Buyer is prohibited from using the Confidential Information to circumvent Empire or its Services in any manner, including, but not limited to, by making direct offers to purchase the Business from Seller outside of Empire’s terms, process, or knowledge. Buyer is strictly prohibited from using the Confidential Information to obtain non-public information from a competitor, to form a competing business, to register domain names pertaining or related to the Business, to obtain keyword lists, user lists, or traffic numbers, or to take any other actions by which Buyer or any other party under Buyer’s ownership or control uses the Confidential Information for purposes outside of the evaluation of the Business for purchase.
5. In the event that a Buyer is required by law to disclose any Confidential Information, the Buyer will cooperate with the providing party and, when possible pursuant to statutory or regulatory authority, provide the providing party with prompt, advance written notice so that the providing party may seek a protective order, prevent against the disclosure of Confidential Information, or waive compliance with the provisions of this Agreement.
6. Buyers understand and agrees that Sellers agree to list Businesses for sale through Empire based on trust that Seller’s Confidential Information will not be misappropriated and that the Buyer’s actions to breach that trust will cause Empire damages the precise amount of which may be extremely difficult or impracticable to determine. Accordingly, in the event that Empire files an action to enforce the restrictions imposed by this Section, it shall be entitled to the entry of an injunction without the necessity of having to post a bond, which injunction shall remain in place pending completion of any action commenced. Notwithstanding Empire’s right to obtain an injunction, Empire will also be entitled to recover $25,000 in liquidated damages against the breaching party plus Empire’s costs and attorneys’ fees in association with the breach.
7. Buyers may be limited to Unlocking a certain number of Businesses at one time (“Active Unlocks”), to be set within Empire’s sole discretion.
8. The Seller of an Unlocked Business is expressly intended to be a third-party beneficiary of this Section 8 and shall be entitled to enforce these terms against a Buyer that violates the same.
Process and Procedure for Making Offers to Purchase a Business
1. Buyer agrees that all offers to purchase a Business listed on Empire’s Website or through Empire’s Services are required to be communicated in writing and through Empire such that Empire is specifically on notice and aware of any and all pending offers. Buyer and Seller understand and agree that the purpose of this provision is to avoid confusion in the sales process, including but not limited to the avoidance of a Seller agreeing to sell the Business to multiple parties.
2. Buyer’s offer to purchase and Seller’s acceptance to sell a Business is incorporated into this Agreement as if fully stated herein. Buyer and Seller understand and agree they are obligated to fulfill the purchase of the Business if its offer is accepted, including but not limited to the payment of the Purchase Price, completing the Migration Process, and completing all other obligations of this Agreement.
3. If two or more Buyers offer the full Listing Price for the Business, the Buyer that first completes a wire transfer of the Purchase Price to Empire is deemed the purchaser of the Business. The wire transfer is complete when it is received and cleared by Empire’s bank or other financial institution or the bank or other financial institution of Empire’s agent.
4. If a below Listing Price offer is made on one of the Buyer’s Unlocked Businesses, and the Seller has elected to circulate that offer to Other Active Unlocks consistent with Section 7(d), Empire will notify Buyer of the Selected Offer and Buyer may make a new offer consistent with Section 7(d).
5. Empire does not charge Buyer any wire or transfer fees, however, certain fees and expenses may be charged by Buyer’s financial institution and are solely Buyer’s responsibility.
Buyer’s Responsibility to Investigate and Perform Due Diligence.
1. Buyer understands and agrees it is solely responsible for investigating all aspects of any purchase of Business, including but not limited to independently reviewing financial information, market circumstances, operational issues, supplier contacts, and other factors pertaining to the overall functioning of the Business. Buyer is advised to not only rely on information provided by Empire, but to supplement that information with its own investigation, including asking the Seller specific questions regarding the Business and the information disclosed in the sales process. Empire makes no representation or guaranty regarding the future performance of any Business. Users must complete any and all due diligence prior to the Migration Period.
2. A Buyer that elects to proceed with conducting exclusive due diligence with the agreement of Seller regarding a specific Business waives all rights to participate in the Inspection Period as outlined in Section 17, unless the Buyer and Seller specifically contract for an Inspection Period.
Purchase Agreement. A Buyer and Seller that have reached terms for the sale of a Business have the option to enter into a more specific purchase agreement (“Custom APA”) to govern that transaction. In the event that the Custom APA conflicts with any term of this Agreement, the Custom APA shall control. However, all other terms of this Agreement are not superseded or amended by the Custom APA.
Buy It Now Listings. Empire may present certain Listings with the ability to “Buy It Now.”
1. A Seller that agrees to list their Business for sale through a Buy It Now option is deemed to have agreed to sell the Business for the stated Buy It Now Listing Price, plus the cost of any associated Inventory with the Business.
2. A Buyer that selects to purchase a Business through a Buy It Now option must follow the on-screen prompts to complete the process, including providing payment of the full Listing Price to Empire, plus the cost of any associated Inventory with the Business. A Buyer completing this process is obligated to the fulfill the purchase, including but not limited to the payment of the Purchase Price, plus the cost of any associated Inventory with the Business, completing the Migration Process, and completing all other obligations of this Agreement.
Payment of the Purchase Price; Buyer Obtains Title at the Sale Date; Reconciliation; Access to Books and Records
1. Based on the offer made by the Buyer and accepted by the Seller, the Buyer is required to deposit the Purchase Price, or a certain amount of the Purchase Price, with Empire prior to any transfer of the Business. Title to the Business will pass to Buyer when, after the Buyer and Seller have agreed to the sale terms, Buyer has deposited the agreed amount of the Purchase Price with Empire (“Sale Date”).
2. All revenues associated with the Business prior to the Sale Date is the Seller’s property.
3. All revenues associated with the Business on and after the Sale Date is the Buyer’s property, provided a Successful Inspection Period is achieved.
4. The Buyer and Seller understand and agree that pre-Sale Date revenue may not be paid out by the applicable platform until Buyer is in possession of the Business (“Seller’s Residual Revenue”). Buyer shall remit Seller’s Residual Revenue to Seller. On the other hand, post-Sale Date revenue may be paid out or otherwise accumulated while Seller possesses the Business (“Buyer’s Residual Revenue”). Seller shall remit Buyer’s Residual Revenue to Buyer.
5. If the transaction includes any or deferred payments that are triggered or impacted by the performance of the Business post-sale, Buyer agrees to provide Seller and Empire reasonable access to Buyer’s books and records, including but not limited to data from relevant third parties, in order to confirm all relevant financial information, including but not limited to revenue, expenses, or profits.
Sale of Assets; Limitations.
1. In consideration of the Purchase Price and subject to the terms of this Agreement, Seller agrees to assign, transfer, convey and deliver to Buyer, and Buyer hereby purchases from Seller right, title and interest in the Assets related to the Business.
2. Except as agreed between the Buyer and Seller or as provided in Section 14(c), this is an asset sale only. The Business are the only assets that are the subject of this Agreement, and there are no assets that are the subject of the sale and purchase under this Agreement other than the Business. Without limiting the foregoing, and by way of example and not limitation, this Agreement specifically excludes the following assets: (a) Seller’s cash, cash equivalents, and investments; Seller’s minute books, stock records, and company seals, and all shares of capital stock held in treasury; (c) all insurance policies and rights thereunder; (d) personnel records and other records that are required by law to be retained by Seller; and (e) other items specifically excluded in the sale as transmitted in writing and conveyed to Buyer. Buyer is not assuming, and shall not be deemed to have assumed, any liabilities or obligations of Seller of any kind or nature whatsoever (whether contractual, statutory or otherwise).
3. In the event that Seller has agreed to an Ezoic Premium Service Agreement (the “Ezoic Agreement”), the Buyer understands and agrees the Ezoic Agreement shall be assigned to Buyer on the Sale Date. Seller represents and warrants the Ezoic Agreement is so assignable, that all necessary consents to such assignment have been obtained, that all conditions of transfer have been met for Seller to assign the Ezoic Agreement to Buyer, and that Buyer is entitled to all rights and privileges under the Ezoic Agreement. Buyer accepts such assignment and agrees to perform all obligations of Seller under the Ezoic Agreement. Buyer further agrees to protect and indemnify Seller against all claims, causes of action, loss, costs, liabilities, and expenses related to Buyer’s performance or nonperformance under the Ezoic Agreement. Buyer represents that, (i) prior to the Sale Date, it has reviewed and understands the terms and conditions of the Ezoic Agreement and (ii) agrees to enter into a separate assignment and assumption agreement of the Ezoic Agreement (if requested), in a form reasonably agreed upon between Buyer and Ezoic.
Payment of Empire’s Commission.
1. In exchange for Empire’s Services, Seller agrees to pay Empire a commission (“Commission”) at a blended rate as follows:
  $0 – $699,999 of the Purchase Price is subject to a 15% commission.
  $700,000 – $5,000,000 of the Purchase Price is subject to an 8% commission.
  $5,000,001 and above of the Purchase Price is subject to a 2.5% commission.
2. Seller agrees to pay Empire’s Commission upon any of the following events:
  1. Seller sells its Business during the Listing Term, whether using Empire’s Services or not;
  2. During the Listing Term, Seller fails to consummate the sale of Business after agreeing to sell the same;
  3. Seller breaches a term of this Agreement that impairs Empire’s ability to market, advertise, or sell the Business; or
  4. For a period of one (1) year after expiration of the Listing Term, Seller sells, transfers, or otherwise assigns the Business to a person or entity that was introduced to Seller or became aware of Seller’s Business through Empire’s Services.
For the purposes of determining the Commission owed to Empire, the Listing Price will be the highest Listing Price in place upon the occurrence of any of the events listed in subparts (i)-(v) above.
1. Buyer is not separately responsible for paying Empire’s Commission in the event the purchase of Business is consummated. However, Buyer agrees to pay Empire’s Commission if Buyer, after reaching an agreement for the purchase of the Business, fails to consummate the transaction or otherwise breaches this Agreement.
Migration Process.
1. After the Sale Date, the process to move the Business to the Buyer will begin (“Migration Process”). Users understand and agree that the Migration Process typically takes 2 to 8 weeks to complete, but could take substantially longer. Users acknowledge and agree that Empire cannot guarantee a specific timeframe to complete the Migration Process.
2. During the Migration Process, the Buyer and Seller shall timely communicate with each other and Empire to facilitate the transfer of the Business into Buyer’s possession and to operate the Business in the same manner in which was operated prior to the Listing.
3. During the Migration Process, the Buyer shall not make any material changes to the Business, including but not limited to increasing expenses, without Seller’s prior written consent. This includes, but is not limited to, making large price adjustments to products, firing employees or contractors, altering paid advertisement campaigns, failing to pay vendors or suppliers, altering supplier relationships, or changing payment gateways. Breach of this provision causes Buyer to automatically waive the Inspection Period.
4. The Migration Process is complete when the Buyer or Empire, in its sole discretion and in good faith, determines that a sufficient portion of the Business has been transferred to Buyer such that Buyer has control over the Business (“Completed Migration”). It is possible that some portion of the Business will continue to be transferred to Buyer after the Completed Migration.
5. Empire may cancel any Migration Process and terminate the sale if either the Seller or Buyer has breached a term of this Agreement. If Empire determines that such a cancellation is required, Empire will cancel the sale, the Business will be returned to Seller, and the Purchase Price will be returned to Buyer. Upon this termination, Seller shall be entitled to the net profit associated with the Business after the Sale Date. The Parties agree to cooperate to complete these actions.
6. A User’s failure to complete the Migration Process is a material breach of the Agreement.
7. User agrees to provide Empire all necessary information upon request to facilitate the Migration Process.
8. If the Buyer’s purchase includes any type of delayed payment of the Purchase Price, including but not limited to any type of “earn out” payment, then the Buyer and Seller may agree to transfer possession of the Domain Name to Empire and Empire shall retain possession of the Domain Name until the full Purchase Price is timely paid. During this time, Buyer agrees to indemnify and hold harmless Empire from any and all use of the Domain Name and all costs, expenses, and attorney fees arising out of or related to this provision. Upon Buyer’s timely payment of the Purchase Price, Empire shall transfer the Domain Name to Buyer. Upon termination of this Agreement or Default, Empire shall transfer the Domain Name to Seller. In case of a dispute between the Buyer and Seller regarding possession of the Domain Name, Empire is permitted to (i) transfer the Domain Name to an independent third party or court of proper jurisdiction to hold the Domain Name pending an outcome of the dispute or (ii) continue to hold the Domain Name until Buyer and Seller jointly instruct Empire to act regarding the release of the Domain Name or until a lawful court order from a court of proper jurisdiction otherwise provides.
9. If the Buyer’s purchase includes any type of delayed payment of the Purchase Price, including but not limited to any type of “earn out” payment, Buyer shall not take any actions to circumvent or adversely affect Seller’s ability to receive the deferred payment. Buyer shall operate the Business in such a manner as to protect Seller’s ability to receive the deferred payments including devoting sufficient resources to permit it to operate with a reasonable likelihood of success. Buyer shall not transfer, assign, or otherwise convey the material aspects of the Business or its Business without Seller’s prior written consent.
10. Any “earn out” time period shall commence on the Sale Date.
Inspection Period.
1. Starting on the date the Buyer is provided access to the revenue generating assets (for example, access to online marketplace user accounts), Buyer shall have a period of fourteen (14) days to inspect the operation of the Business (“Inspection Period”) upon the terms and conditions stated below.
2. During the Inspection Period, Buyer shall operate the Business in a manner as close as possible to Seller’s operation and shall not make any material changes, including addition of new expenses, without Seller’s prior written consent. Breach of this provision causes Buyer to automatically waive the Inspection Period.
3. Empire may cancel any Inspection Period and terminate the sale if either the Seller or Buyer has breached a term of this Agreement. If Empire determines that such a cancellation is required, Empire will cancel the sale, the Business will be returned to Seller, and the Purchase Price will be returned to Buyer. Upon this termination, Seller shall be entitled to the net profit associated with the Business after the Sale Date. The Parties agree to cooperate to complete these actions.
4. Buyer may request termination of this Agreement if, consistent with this Agreement, the Buyer believes a Substantial Deviation exists.
5. A “Substantial Deviation” exists when the Inspection Period Revenue is less than fifty percent (50%) of the prorated Average Monthly Revenue. If the Inspection Period Revenue is fifty percent (50%) or more of the prorated Average Monthly Revenue, Buyer shall have no right to request to terminate this Agreement.
6. “Inspection Period Revenue” is defined as the Business’ revenue during the Inspection Period.
7. “Average Monthly Revenue” is defined as the most current information regarding the Business’ average monthly revenue made available on Empire’s Website.
8. A “Successful Inspection Period” is an Inspection Period in which there is no Substantial Deviation.
9. To request termination of this Agreement based on a Substantial Deviation, Buyer must, within the Inspection Period: 1) notify Empire in writing of the request to terminate this Agreement within the Inspection Period at support@empireflippers.com or the Zendesk ticket already being used; and 2) provide evidence of the Substantial Deviation and Inspection Period Revenue through verifiable screenshots and/or by providing Empire access to the Business’ raw financial data in a form acceptable to Empire.
10. If Buyer requests termination of this Agreement consistent with the provisions above, Empire will investigate the matter. The Seller and Buyer agree and understand this investigation could take 2 to 8 weeks to complete or longer depending on the circumstances (“Investigation Period”). Empire may require additional information from the Buyer or Seller to conduct its investigation and the Buyer and Seller agree to comply with such requests. Empire retains the sole and absolute discretion to determine the presence or absence of a Substantial Deviation.
11. If Empire confirms the presence of a Substantial Deviation, Empire will cancel the sale, the Business will be returned to Seller, and the Purchase Price will be returned to Buyer. Upon this termination, Seller shall be entitled to all revenue associated with the Business, including revenue after the Sale Date. The Buyer and Seller agree to cooperate to complete these actions.
12. If Empire confirms the absence of a Substantial Deviation, the sale will continue and the Inspection Period will be deemed to have expired.
13. If Buyer fails to provide timely written notification of its request to terminate this Agreement, Buyer is deemed to have freely and voluntarily waived any and all contingencies in connection with the purchase of the Business, including any discrepancies, fluctuations, or changes in the performance of the Business and specifically its gross revenue, net revenue, expenses, traffic, and other metrics of performance, including any discrepancies, fluctuations, or changes in the performance of the Business during the Migration Process and/or during the Inspection Period.
14. Buyer may waive the Inspection Period by notifying Empire of its intent to waive the Inspection Period and authorization to release the Purchase Price to Seller in writing.
Release of the Purchase Price to Seller.
1. Provided Seller has complied with this Agreement, including the Verification Process below, within a reasonable time after a Successful Inspection Period and Completed Migration, Empire will release the Purchase Price, or the applicable portion thereof, paid by Buyer to the Seller, less Empire’s Commission.
2. Prior to the release of any portion of the Purchase Price, Seller is required to present verifiable photo identification through pictures and/or videos direct to Empire, intended to confirm Seller’s identity (“Verification Process”). This identification must be government issued, including but not limited to a driver’s license or passport. This identification is subject to Empire’s review in their sole and absolute discretion. Empire reserves the right to withhold payment of the Purchase Price to any Seller that fails to adhere to this provision, determined in Empire’s sole discretion.
3. Seller shall complete the Verification Process and respond to all questions pertaining to the release of the Purchase Price within 5 days of the expiration of the Inspection Period.
Buyer Default.
1. The following shall be deemed an event of Buyer’s Default: 1) Buyer fails to timely complete any required payments in connection with the purchase, including but not limited to payment of the Purchase Price, or any portion thereof, or any required payment for Inventory; 2) if prior to completing the payment of the Purchase Price, Buyer or another person shall file a petition for relief for Buyer under the bankruptcy laws, or shall make an assignment for the benefit of creditors for Buyer, or if a receiver of any property of the Buyer be appointed in any action, suit or proceeding by or against Buyer, or if Buyer shall admit in writing to any creditor or to Buyer that it is insolvent, or if the interest of Buyer in the Business shall be sold under execution or other legal process.
2. Upon the occurrence of an event of Buyer’s Default, Seller shall have the right to terminate the Agreement and shall be entitled to full possession of the Business. Seller may make its election to terminate known to Buyer by delivery of a notice of termination to Buyer and a notice to Empire to transfer any of the Business to Seller, if Empire is in possession of any portion of the Business. Such termination shall be immediately effective and Seller shall be entitled to forthwith commence an action in summary proceedings to recover possession of the Business. Buyer agrees to fully comply and cooperate to transfer the Business to Seller. Further, the Buyer and Seller agree Empire is not liable in any manner whatsoever for its transfer of any portion of the Business to Seller consistent with this Agreement. Empire has no obligation to refund any portion of its Commission upon a Default.
3. Anything contained in this Agreement to the contrary notwithstanding, on the occurrence of an event of default, the Seller or Empire shall not exercise any right or remedy under any provision of this Agreement or applicable law unless and until: (a) the Seller or Empire has given written notice thereof to the Buyer, and (b) the Buyer has failed to cure the event of default within fifteen (15) days.
Remedies for Material Breach. The Buyer, Seller, and Empire understand and agree that monetary damages would not be a sufficient remedy for any breach of this Agreement and that, in addition to monetary damages and all other rights and remedies available at law or according to the terms of this Agreement, the non-breaching Party, including Empire, shall be entitled to equitable relief, including injunctive relief, specific performance and/or the granting of an immediate restraining order or preliminary injunction (without posting bond) enjoining any such breach or reasonably anticipated breach as a remedy. Such equitable remedies shall not be the exclusive remedies available for breach of this Agreement, but shall be in addition to all other remedies available at law or equity.
Assumption of Risk. The Buyer and Seller agree that, prior to the Sale Date, Seller assumes all risks of destruction, loss, or damage to the Business or the risk of any casualty, including any liability arising out of ownership of the Business, excluding any of the foregoing caused by Buyer’s negligence. Buyer assumes all risk on and after the Sale Date.
Non-Compete Agreement. Unless otherwise agreed, Seller will not directly or indirectly:
1. engage in or in any manner become interested in, directly or indirectly, as an owner, partner, joint venturer, investor, shareholder, member, or otherwise, in any business, trade, or operation that competes with the Business for a period of three (3) years of the Sale Date, anywhere in the world, except that Seller may invest in a publicly owned company, provided the investment does not constitute more than one percent (1%) of the voting securities of any public company; or
2. For a period of three (3) years, accept employment with or render services to a third party in a competing business as a director, officer, agent, employee, or consultant (with or without compensation).
Confidentiality. From and after the Sale Date, Seller shall not disclose any and all information concerning the Business, except to the extent the Seller can show that such information (a) is generally available to and known by the public through no fault of Seller (b) is lawfully acquired by Seller after the Sale Date from sources which are not prohibited from disclosing such information by a legal, contractual or fiduciary obligation.
Indemnification.
1. Buyer agrees to indemnify Seller from all liabilities arising out of Buyer’s operation of the Business on and after the Sale Date.
2. Seller agrees to indemnify Buyer from all liabilities arising out of Seller’s operation of the Business prior to the Sale Date.
Indemnification of Empire. All Users agree to hold harmless, defend, and indemnify Empire from and against any and all claims, demands, judgments, liabilities, costs, and fees, including attorneys’ fees, arising out of or related to: (1) the use of the Empire Flippers’ Website; (2) the use of Empire’s Services; (3) the review and listing of any Business for sale; (4) the transfer and migration of the Business, including, but not limited to, access to accounts associated with the transfer and migration of the Business; (5) the violation of any term or condition of this Agreement; (6) the violation of the rights of third parties, including rights of privacy or publicity or intellectual property rights; and (7) the violation of any law, statute, regulation, ordinance, or treaty, whether local, state, provincial, national, or international. The obligation to defend and indemnify Empire will not provide you with the ability or right to control Empire’s defense, and Empire reserves the right to control its defense, including, but not limited to, the choice to litigate or settle and the choice of counsel.
Limitation of Liability.
EXCEPT FOR EMPIRE’S OBLIGATION TO RELEASE THE PURCHASE PRICE OR ITS GROSS NEGLIGENCE, USERS AGREE THAT THE SERVICES ARE PROVIDED ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, NON-INFRINGEMENT, AND TITLE. USERS AGREE THAT EMPIRE WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO A USER’S USE OF THE SERVICES, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE EMPIRE FLIPPERS’ WEBSITE OR SERVICES OR OTHER DOWNTIME. USERS ACKNOWLEDGE THAT THEIR USE OF THE SERVICES IS AT THEIR SOLE RISK AND THAT EMPIRE’S LIABILITY IS LIMITED TO THE AMOUNT THAT USERS PAID TO USE THE WEBSITE OR SERVICES OR $1,000, WHICHEVER IS LESS.
Broker Disclaimer. Unless otherwise provided, all sales are final and there are no refunds. Earnings and traffic may decline due to Google, Amazon, or other updates or rule changes, increased competition, account suspension or termination, mismanagement by the Buyer, and other factors. The Buyer and Seller agree that Empire makes no guarantees or warranties, written or implied, of the future performance of the Business. Buyer specifically agrees and acknowledges that it assumes all risk in any purchase.
Copyright Policy
1. Empire will respond to all duly authorized notices of alleged infringement that comply with the Digital Millennium Copyright Act. If you believe that a user of Empire’s Services has infringed upon your copyright rights, you may provide Empire with a notice of copyright infringement that complies with § 512 of the Digital Millennium Copyright Act. Upon receipt of a notice that complies with the Digital Millennium Copyright Act, Empire will make a good faith attempt to notify the owner or uploader of the allegedly infringing content so that they can respond with a counter-notification under the Digital Millennium Copyright Act.
2. All notices of copyright infringement submitted to Empire must contain the following:
  1. the physical or electronic signature of a person authorized to act on behalf of the copyright owner;
  2. identification of the copyrighted work(s) alleged to have been infringed;
  3. the location of the copyrighted work(s) on Empire’s website;
  4. your contact information, such as an address, telephone number, fax number, or email address;
  5. a statement that you have a good faith belief that the use of the allegedly infringing content is not authorized by the copyright owner, its agent, or the law; and
  6. a statement, under penalty of perjury, that the information contained in the notification is accurate and that you are authorized to act on behalf of the copyright owner.
3. Upon receipt of a duly authorized notice of infringement, Empire will undertake reasonable efforts to notify the poster of the allegedly infringing content so that the poster may issue a counter-notification. Counter- notifications must contain the following:
  1. The physical or electronic signature of the user;
  2. Identification of the material that has been removed or the location where the material previously appeared;
  3. A statement, under penalty of perjury, that the subscriber has a good faith belief that the material was removed due to mistake or misidentification; and
  4. The subscriber’s name, address, and telephone number and a statement that the subscriber consents to the jurisdiction of the federal district court in which the subscriber is located.
4. All notices of infringement may be sent to: Eric Misterovich, Revision Legal, PLLC, 8051 Moorsbridge Rd., Portage, MI 49024, Phone: 269-281- 3908, Email: eric@revisionlegal.com.
General Provisions.
1. Opportunity to Retain Counsel and Enter Into Custom Agreement. Buyer and Seller understand and agree that they have the option to retain legal counsel and draft and negotiate their own agreement to consummate the sale of the Business.
2. Fair Market Value. The Buyer and Seller each acknowledge the Purchase Price represents fair market value.
3. Costs. All Users agree to pay their own costs and expenses incurred with respect to this Agreement.
4. Valid and Binding Agreement. This Agreement represents a binding legal obligation and is enforceable in accordance with its terms and is binding and shall inure to the benefit of each User’s respective heirs, legal representatives, successors, and assigns.
5. Confidentiality. The Buyer and Seller agree to maintain complete confidentiality regarding this Agreement as it pertains to the purchase of a Business.
6. Waivers. A waiver by either Buyer or Seller to any provision of this Agreement does not constitute a waiver of any other provision of this Agreement.
  1. No Third-Party Beneficiaries. Except as otherwise provided, nothing in this Agreement will provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy, or right of any kind.
7. Sections and Headings. The sections and headings in this Agreement are for organization and clarification purposes only and should not be interpreted as part of this Agreement.
8. Choice of Laws and Venue. User agrees that any and all claims or disputes that may be brought by or against Empire arising out of or related to this Agreement, including any claims or disputes involving its validity, interpretation, breach, violation, or termination, or any claims or disputes in which Empire has an interest in the resolution of the claim or dispute, shall be exclusively brought in the state or federal courts located in Kalamazoo County, Michigan and will be interpreted and enforced pursuant to Michigan law without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any other jurisdiction other than the State of Michigan. User expressly consents to the exclusive personal jurisdiction of such courts and expressly waives any jurisdictional or venue defenses otherwise available. The prevailing party is entitled to payment of its costs, expenses, and attorney fees by the non-prevailing party for any actions, disputes, or litigation arising out of or related to this Agreement. This Agreement is deemed to have been negotiated, executed, and performed exclusively within Kalamazoo County, Michigan. YOU UNDERSTAND AND AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT BROUGHT AGAINST EMPIRE MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE ON WHICH THE DISPUTE AROSE.
9. Entire Agreement. Except as otherwise provided, this Agreement is the entire agreement between the User and Empire as to the subject matter stated herein.
10. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
11. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts beyond the affected party’s reasonable control, including, without limitation: (1) acts of God; (2) flood, fire, earthquake, or explosion; (3) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (4) government order or law; (5) actions, embargoes, or blockades in effect on or after the date of this Agreement; (6) action by any governmental authority; and (7) national or regional emergency; and (8) strikes, labor stoppages or slowdowns, or other industrial disturbances. The party suffering a Force Majeure event shall give prompt notice to the other party, stating the period of time the occurrence is expected to continue, and shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure event are minimized.
12. Other Material Changes. Empire reserves the right (but not the obligation) to cancel a sale if there have been material changes outside the reasonable control of the Buyer or Seller, including but not limited to changes in commission structure or marketplace rules or regulations.

Referral Partner Program Terms of Use

Effective Date: April 4, 2022

Introduction

Welcome to the Empire Flippers, LLC Referral Partner program.

This is our Empire Flippers, LLC’s Referral Partner Program Terms of Use Agreement (“Agreement”) and it contains important provisions regarding your participation in this program. The Referral Partner Program allows approved Referral Partners to share in Empire Flippers’ commission for the sale of eligible businesses through its platform. You should review this Agreement carefully before deciding whether to participate in this program. If you do not agree to the terms contained within this Agreement, you are prohibited participating in the program.

Definitions
1. Eligible Lead. An Eligible Lead shall be defined as a buyer or seller that contacts Empire through efforts directly attributable to the Referral Partner, provided an Eligible Lead shall not include any individual or related business entity that has previously submitted a business to be sold to Empire or unlocked a business through Empire’s marketplace.
2. Closed Lead. A Closed Lead shall be defined as an Eligible Lead that is a party to a transaction that results in the completed sale of a business through Empire, including payment of the purchase price, the migration of the relevant assets to the Buyer, successful completion of any inspection period, and disbursement of funds to the seller. A Buyer or a Seller shall be ineligible to participate in the Referral Partner Program for any transaction of which they are a party or directly or indirectly own any equity in the party.
3. Referral Fee. For every Closed Lead, the Referral Partner shall be entitled to twenty percent (20%) of the commission Empire earns on the underlying sale of the business (“Referral Fee”). Empire shall pay the Referral Fee only after it has received its commission.
4. Referral Partner. A Referral Partner is an individual or business entity that Empire Flippers, LLC has approved to participate in the Referral Partner Program.
Application for Admission into the Referral Partner Program; Non-Exclusivity. Only those individuals specifically approved by Empire Flippers, LLC in writing may participate in the Referral Partner Program, separate and apart from this Agreement.
Tracking Referrals. Once approved for participation in the Referral Partner Program, Empire Flippers will send the Referral Partner a unique link. Referral Partners are encouraged to use their unique tracking link when referring leads to Empire Flippers. If the tracking link is not used, the Referral Partners must provide prompt written notice of the leads to Empire Flippers in order to qualify for the Referral Fee. Without limiting the generality of the foregoing, if the tracking link is not used and written notice is not provided, Empire Flippers is not under any obligation to qualify the Referral Partner for the Referral Fee.
Trademarks; Intellectual Property. Referral Partner acknowledges and agrees that any and all trademarks, trade names, design marks, or logos displayed on the Empire website or marketing materials, including but not limited to the EMPIRE FLIPPERS mark, are common law or registered trademarks owned by or licensed to Empire. Referral Partner is expressly prohibited from using the trademarks of Empire to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of Referral Partner’s goods or services. Referral Partner is further prohibited from using the trademarks of Empire in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. Referral Partner may make a nominative fair use of the trademarks of Empire consistent with trademark law during the term of this Agreement. Referral Partner is also prohibited from using the copyrighted content of Empire, including, but not limited to, Empire’s logos, copy, and website content. Empire retains the discretion to prohibit Referral Partner any use of Empire’s brand, trademarks, logos, copy, or other content. Referral Partner further acknowledges that all other intellectual property rights, including without limitation, all material, content, software, or services related to the Referral Partner Program will remain with Empire and its licensors (if any).
Payment of Referral Fee. To receive payment under this Agreement, Referral Partner must have agreed to the terms of this Agreement and otherwise complied with its obligations hereunder. Referral Partner must have a valid and up-to-date payment method and have completed any required tax documentation. Provided Referral Partner is not in default or breach of the terms of this Agreement, and subject to the provisions of 1(c), Empire shall pay to Referral Partner its Referral Fee within forty-five (45) days from confirmation of eligibility for the Referral Fee. In the event that Referral Partner fails to request payment after six (6) months following Empire’s receipt of its commission, then Referral Partner forfeits the right to receive the Referral Fee.
Referral Partner Warranties and Representations.
1. Referral Partner represents and warrants that, to the extent it is a business entity, it is a duly organized business entity authorized under the laws of its place of organization or incorporation, that it is not prohibited from entering into this Agreement by the terms of any preexisting agreement, and that any individual signing this Agreement on behalf of Referral Partner is an authorized agent of Referral Partner (“Signing Agent”). Referral Partner represents and warrants that Signing Agent has the authority to bind Referral Partner to the terms of this Agreement. Referral Partners who are individuals represent and warrant that they are authorized to enter into this Agreement and by signing this Agreement they have bound themselves to the terms of this Agreement.
2. Referral Partner represents and warrants its execution, delivery and performance of this Agreement has been and remains duly authorized by all necessary corporate action and does not contravene any provision of its articles or certificate of incorporation, bylaws (or equivalent constituent documents), or any law, regulation, rule, decree, order, judgment, or contractual restriction binding on it or its assets.
3. Referral Partner represents and warrants it has the necessary knowledge, skills, expertise, and training to obtain Eligible Leads
4. Referral Partner represents and warrants all services to be performed under the terms of this Agreement will be carried out in a diligent, prompt, and professional manner by individuals with the necessary knowledge, skills, expertise, and training to provide the services.
5. Referral Partner represents and warrants that its activities under this Agreement and the receipt of Eligible Leads does not violate any law, regulation, ordinance, statute, or treaty that is applicable within Referral Partner’s jurisdiction, including but not limited to the CAN-SPAM Act, Telephone Consumer Protection Act, and Computer Fraud and Abuse Act.
Suspension. Empire reserves the right to temporarily or permanently suspend Referral Partner’s access to the Referral Partner Program at any time, in its sole discretion and without notice, for violation or suspected violation of the terms of this Agreement.
No Circumvention. Referral Partner shall not, directly or indirectly, whether on its own behalf or through a third party, circumvent the nature of this Agreement. Without limiting the generality of the foregoing, Referral Partner shall not use any of the information received pursuant in the course of the term of this Agreement or Referral Partner’s participation in the Referral Partner Program except for the sole purpose of bringing forth Eligible Leads to Empire. Referral Partner is expressly prohibited from using intellectual property without permission, making false or misleading comments in connection with promoting Empire’s Services.
Term and Termination. Each party may terminate this Agreement at any time and without cause. Either party may terminate this Agreement if the other party is in material breach of this Agreement and has not cured such breach within five (5) calendar days of written notice from the non-breaching party that specifies the breach. Empire may further terminate this Agreement if, at any time, Referral Partner (i) breaches any term or condition of this Agreement; (ii) becomes insolvent or files an assignment for the benefit of creditors; (iii) is the subject of an insolvency proceeding, including, but not limited to, an involuntary bankruptcy; (iv) violates the rights of third parties, including, but not limited to, intellectual or other personal or proprietary rights; (iv) voluntarily files a petition for bankruptcy; or (v) Empire determines that Referral Partner is acting, or has acted, in a way that has or may negatively reflect on or affect Empire, its prospects or its customers. Termination of this Agreement hereunder will not limit either party from pursuing any other remedies available to it, including injunctive relief. Any provision of this Agreement that contemplates performance or observance subsequent to termination or expiration of this Agreement will survive termination or expiration hereof and will continue in full force and effect.
Assignment. Referral Partner may not assign, in whole or in part, any rights, obligations, or duties created by or under this Agreement. This Agreement does not permit any sub-Referral Partner arrangements or relationships. Empire may assign its rights, obligations, or duties under this Agreement at any time upon written notice to Referral Partner, including in a sale or transfer of all or substantially all of Empire’s assets, in a sale or transfer of Empire’s accounts, or in a merger of Empire with another company. Should Empire assign its rights, obligations, or duties under this Agreement, Empire’s rights, obligations, or duties under this Agreement will be binding on, and shall inure to the benefit of, its successor or assign.
Confidential Information. Referral Partner agrees to retain all information relating to Empire any affiliated entity in strict confidence and shall not, at any time, except as authorized in writing by an authorized officer of Empire and for the benefit of Empire, directly or indirectly, divulge or disclose to any person, firm, association or corporation, or use for his own benefit, gain or otherwise, any information, plans, processes, products, client, report data, results of tests and data, client lists, price lists or any other trade secrets or confidential materials or client information or data regarding the business of Empire or any affiliated entity, which is disclosed to or acquired by Referral Partner directly or indirectly during the term of this Agreement.
Indemnification.
1. Referral Partner agrees to indemnify, defend, and hold harmless Empire, its officers, directors, employees, members, affiliates, independent contractors, and agents, for any and all damages, losses, claims, actions, costs, judgments, liabilities, and expenses, including attorneys’ fees and costs, arising out of or related to any: (i) any breach by Referral Partner of any representation or warranty set forth in this Agreement; or (ii) Referral Partner’s violation of any applicable law, regulation, ordinance, statute, or treaty.
2. If any action is or will be brought against Empire with respect to any allegation for which indemnity may be sought, Referral Partner will provide reasonable cooperation to Empire, at Referral Partner’s expense, to defend against or settle any such claim. Referral Partner’s obligation to defend Empire under the terms of this Agreement will not provide Referral Partner with the ability to control Empire defense, and Empire reserves the right to control its defense and select its counsel.
Severability If any provision of this Agreement is held to be illegal, invalid, or unenforceable, and if the rights or obligations of either party under this Agreement will not be materially and adversely affected, (i) said provision will be fully severable; (ii) this Agreement will be construed and enforced as if said provision had never comprised a part of this Agreement; (iii) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the severance of any provision; and (iv) there will be added a legal, valid, and enforceable provision as similar in terms to said provision as may be possible in lieu of said provision
Choice of Laws. This Agreement will be governed by and interpreted in accordance with the laws of the State of Michigan. Empire and Referral Partner’s sole and exclusive forum and remedy at law for any disputes arising out of or related to this Agreement, including the interpretation thereof, shall be the courts governing Kalamazoo County, Michigan. Empire and Referral Partner hereby submit to the exclusive personal and subject matter jurisdiction of the courts governing Kalamazoo County, Michigan. The prevailing party in any dispute or litigation arising out of or related to this Agreement shall be entitled to its reasonable attorney fees and costs. This Agreement is deemed to have been negotiated, executed, and performed exclusively within Kalamazoo County, Michigan. YOU UNDERSTAND AND AGREE THAT ALL DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT BROUGHT AGAINST EMPIRE MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE ON WHICH THE DISPUTE AROSE.
Waiver. The waiver by either party of a breach of or a default under any provision of this Agreement, must be in writing and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement, nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operate as a waiver of any right or remedy.
Relationship of the Parties; No Third Party Beneficiary. Nothing in this Agreement will be deemed or construed as creating a joint venture, partnership, employment, or fiduciary relationship between the parties. Neither party has any authority of any kind to bind the other party. Nothing in this Agreement will provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy, or right of any kind.
Force Majeure. Except for the payment of monies due hereunder, neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, flood, embargoes, labor disputes and strikes, riots, war, Internet or other network “brownouts” or failures, power failures, and acts of civil and military authorities; provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance. To the extent that a force majeure has continued for ten (10) business days, Referral Partner or Empire may terminate the Agreement, excluding payment obligations, without penalty.
Valid and Binding Agreement. This Agreement represents a binding legal obligation and is enforceable in accordance with its terms and is binding and shall inure to the benefit of each User’s respective heirs, legal representatives, successors, and assigns.
Counterparts. This Agreement may be executed in counterparts, with the same effect as if the parties had signed the same document. Signed counterparts of this Agreement transmitted via email, fax, or electronically are equivalent to a signed original of this Agreement.
Integration. This Agreement, including any exhibit(s), addendum (addenda) or rider(s) attached hereto, constitutes the entire agreement between the parties concerning the subject matter hereof, and supersedes (i) all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, agreements, and communications, whether oral or written, between the parties relating to the subject matter, and (ii) all past courses of dealing and industry custom. No amendment or modification of any provision of this Agreement, exhibit, addendum or rider shall be effective unless in writing and signed by a duly authorized representative of each party.
Interpretation; Conflict. This Agreement is deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter. Referral Partner expressly acknowledges the existence of Empire’s Terms of Use Agreement, governing the rights and responsibilities as between Empire and Buyers, Sellers and Users of Empire’s Services (as that term is defined therein). Nothing in this Agreement shall restrict or limit any of Empire’s rights under the Terms of Use Agreement. In the event of a conflict between this Agreement and the Terms of Use, the Terms of Use Agreement shall apply.
Sections and Subheadings. The sections and headings in this Agreement are for organization and clarification purposes only and should not be interpreted as part of this Agreement.
Changes to Agreement or Program. Empire reserves the right to update the terms of this Agreement and its Referral Partner Program at any time, in its sole discretion. Referral Partner’s continued use or participation in the Referral Partner Program will indicate Referral Partner’s acceptance of any such updates.

TERMS OF USE

Referral Partner Program Terms of Use

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