This Referral Agreement (the “Agreement”) is entered into by and between Gorgias Inc., having its principal place of business at 180 Sansome St, Suite 1800, San Francisco, CA 94014 (“Seller”) and you as a referrer of potential Qualified Customers to Seller (“Referrer”). This Agreement is effective from the date Referrer submits its Gorgias Referral Program application (“Effective Date”).
Referrer must read, agree with and accept all of the terms and conditions contained in this Agreement to participate in the Seller’s Referral Program. BY CLICKING ON “SUBMIT” WHEN SUBMITTING THE APPLICATION TO THE SELLER’S REFERRAL PROGRAM AND/OR BY PARTICIPATING IN THE SELLER’S REFERRAL PROGRAM, THE REFERRER AGREES (1) TO ABIDE BY THE TERMS AND CONDITIONS IN THIS AGREEMENT, (2) THAT THIS ELECTRONIC AGREEMENT WILL BE LEGALLY BINDING ON REFERRER IN THE SAME WAY AS A WRITTEN AGREEMENT, AND (3) TO CONTRACT WITH SELLER ELECTRONICALLY (INCLUDING MAINTAINING THIS AGREEMENT AS AN ELECTRONIC RECORD) AND THAT CLICKING ON THE “SUBMIT” BUTTON CONSTITUTES REFERRER’S LEGALLY VALID AND BINDING SIGNATURE.
Seller is a provider of online services, including software as a service (“Seller Services”), and allows members of its referral program to market and refer customers to Seller in exchange for a commission (“Referral Program”). Referrer has submitted or will submit an application and desires to join the Seller Referral Program and introduce Seller to companies that are interested in purchasing Seller’s products and services in accordance with the terms of this Agreement and the Gorgias’ Referral Program Guide attached hereto as Schedule 1 (“Referral Program Guide”). Accordingly, and for good and valuable consideration, and the mutual promises and covenants set forth below, which the parties acknowledge to be sufficient, the parties hereby agree as follows:
1. SCOPE OF ENGAGEMENT
1.1 This Agreement (including the Referral Program Guide) is binding on Seller and Referrer only after the Referrer’s application to the Seller’s Referral Program has been accepted and communicated to Referrer in writing. Upon such written acceptance, this Agreement will be legally binding on the parties as of the Effective Date.
1.2. Subject to any restrictions set out in this Agreement and the Referral Program Guide, Referrer shall perform the following:
a. use its best efforts to identify Qualified Customers of Seller’s services and products (collectively, the “Services”), facilitate introductions to such Qualified Customers, and distribute marketing and promotional materials approved by Seller. For purposes of this Agreement, a “Qualified Customer(s)” means a potential customer (or its affiliates) identified by Referrer to Seller, as provided in the Referral Program Guide, that (i) is not a current or previous customer or beneficial user of the Services, or (ii) has not previously communicated to Seller an interest in purchasing Seller’s Services (including through a person other than Referrer), or (iii) is not the Referrer or any subsidiary or affiliate of the Referrer;
b. comply with the policies, standards, and procedures in the Referral Program Guide attached hereto as Schedule 1, as may be updated from time to time), and that is incorporated herein by this reference as if fully set forth herein;
c. attend and participate in all training sessions required by Seller;
d. comply with all marketing and sales related instructions, documents, and guidelines provided by Seller to Referrer from time to time;
e. only use those marketing materials supplied by Seller to Referrer to market and promote the Services, unless Seller expressly instructs Referrer to modify such materials for the purpose of targeting certain Qualified Customers and solely as permitted and instructed by Seller.
f. meet regularly with Seller’s representatives to discuss progress in the marketing of the Services and strategy to promote the sale of the Services to Qualified Customers;
g. provide assistance to Seller and/or to the Qualified Customer, as reasonably requested by Seller, to facilitate the consummation of the sale of the Services to such Qualified Customer;
h. refer all inquiries from a Qualified Customer to Seller, including those that indicate the desire to deal directly with Seller rather than Referrer, as provided in the Referral Program Guide; and
i. refer to Seller any post-sale inquiries from Qualified Customers in relation to the Services.
1.3 This Agreement only applies to referrals made during the Term and resulting in a sale of Services by Seller to the Qualified Customer. Seller shall have thirty (30) days after receipt of a written identification from Referrer to inform Referrer that a particular business has already been introduced to Seller by another party or is an existing customer of Seller.
1.4 The Referral Program Guide will be applicable to Referrer’s performance and activities under this Agreement, and will be made available to Seller within fifteen (15) days prior to the date compliance is required or from the date of its amendment.
2. COMMISSIONS AND PAYMENT
2.1 During the Term, for each Service sold to Qualified Customers, Seller agrees to pay to Referrer the commission percentage(s) from net revenue from such Qualified Customer for the applicable commission period (“Referral Fee”), in each case as set forth in Schedule 1.
2.2 Seller will only pay Referral Fees to Referrer for transactions under this Agreement that are made directly between the Qualified Customer and Seller i.e., Seller will not pay Referral Fees to Referrer for transactions involving a third-party sales intermediary.
2.3 Unless Referrer is in breach of its obligations under this Agreement (including the Referral Program Guide), and subject to Section 2.9(b), the Referral Fee shall be payable to the Referrer only for Qualified Customers that have paid Seller for the purchased Services during the Term or during the thirty (30) day period following the Term for Qualified Customer’s communicated to Seller prior to the expiration of the Term.
2.4 All Referral Fees shall be paid to Referrer within thirty (30) days of the end of the calendar quarter in which the Seller actually receives payment from the Qualified Customer for which the Referral Fee is due.
2.5 The Seller will not be responsible for any expenses of the Referrer in the course of the performance of its obligations hereunder unless such expenses have been previously approved in writing by the Seller.
2.6 To receive the applicable Referral Fees, Referrer must complete the Seller’s Referral Program application, submit the required tax documentation as set forth in the Referral Program Guide, and be accepted into the Referral Program by the Seller.
2.7 All Referral Fees do not include taxes, levies, or duties (“taxes”) except where Seller is required to impose or withhold taxes under applicable law. Referrer is solely responsible for remitting all taxes associated with any Referral Fees paid to it under this Agreement. Referrer may be assessed sales tax unless Referrer provides a valid exemption certificate that indicates tax should not be applied to the Referral Fee. All amounts payable by Seller are subject to offset any amounts owed by Referrer to Seller.
2.8 All disputes related to Referral Fees must be submitted, in writing, to Seller within thirty (30) days of release of payment. Such disputes will be barred and forfeited if notice is not provided within this period. All disputes must be submitted with reasonable details to review the dispute.
2.9 Notwithstanding the foregoing or anything to the contrary in this Agreement (including the Referral Program Guide), Referrer may start referring Qualified Customer to Seller while it application is pending; provided, however, no Referral Fees will be due and paid to Referrer until Referrer completes the Referral Program application, has accurately completed and submitted the tax documents referred in the Referral Program Guide (see Section 2.5), and Referrer has been accepted to the Referral Program. If Referrer fails to submit or correct its application information, or fails to submit such tax documents as required hereunder, in each case for a period of six (6) months immediately following the date when Referrer initially submitted its application, then at Seller’s discretion, Referrer will not be entitled to receive a Referral Fee for any submitted Qualified Customer during such period, and Reseller has no obligation to pay Referrer the associated Referral Fees.
2.10 Notwithstanding the foregoing, after the Referrer’s application is approved and Referrer is accepted into the Referral Program:
a. Referrer may be removed from the Referral Program (in Seller’s sole and exclusive discretion) without any liability to Seller if Seller does not receive from the Referrer a Qualified Customer lead within sixty (60) days from the date the Referrer was accepted into the Referral Program and this Agreement will terminate immediately upon notice;
b. Seller is not obligated to pay Referral Fees for Qualified Customers that do not make a purchase of a Service within six (6) months from the date such Qualified Customer was referred to Seller, in seller’s sole discretion; and
c. If during the Term Referrer fails to refer a Qualified Customer lead within a period of twelve (12) months from the date of the last Qualified Customer referral submitted to Seller, and such Qualified Customer lead does not become a paying Customer of Seller, in Seller’s sole discretion, Referrer will not be entitled to receive any Referral Fees for any prior Qualified Customers, and such Referral Fees will be forfeited; provided, however, that if Referrer refers a Qualified Customer during a period of ninety (90) days after the end of such twelve (12) month period, and that Qualified Customer becomes a paying Customer of Seller, then Seller may reactivate Referrer’s participation in the Referrer Program and will receive Referral Fees for payments made by Referrer’s prior Qualified Customers for the applicable commission period remaining after the date of reactivation (i.e., payment received after the date of reactivation during the remaining commission period for such Qualified Customers).
3. DURATION OF THE AGREEMENT
3.1 The initial term of this Agreement shall commence on the Effective Date and shall continue for a period of twelve (12) months (the “Initial Term”). The Initial Term will automatically extend for an additional twelve (12) month period (each, a “Renewal Term”) unless either party sends the other party a notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or Renewal Term, as the case may be. The Initial Term and any Renewal Terms shall be collectively referred to herein as the “Term.”
4. REPRESENTATIONS AND WARRANTIES
4.1 Referrer represents and warrants to Seller that:
a. Referrer’s performance of this Agreement will not violate or conflict with any agreement or arrangement it has in place with any third party;
b. If Referrer is a legal entity, the Referrer is an entity duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation, and that it has the requisite corporate power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder;
c. If Referrer is a natural person, Referrer is not restricted or prevented in any way from entering into this Agreement, and the Referrer has the requisite skills, power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder as legally binding obligations;
d. Referrer’s performance of its obligations in this Agreement (including the Referral Program Guide), and any Seller’s use of Referrer’s and Qualified Customer’s confidential, proprietary, and personal information provided by Referrer to Seller shall not infringe any third-party rights, including any rights of confidentiality, privacy, or intellectual property (“IP”) of a such third party (such as Qualified Customers);
e. its performance of this Agreement shall be provided in accordance with the terms of this Agreement and conform to the requirements of this Agreement, and shall be performed in a competent, timely, professional, and workmanlike manner;
f. Referrer shall comply and shall take all steps necessary to ensure that its personnel comply with all applicable laws, rules, and regulations; and
g. Referrer has not offered or given, and will not offer or give, any employee or representative or family member of a Seller employee a payment, gratuity, personal service, entertainment, or gift, other than novelty advertising items of a nominal value (i.e., pens, pencils, calendars, writing pads, clipboards, cups). Legitimate business-related activities (i.e., site inspections, business symposiums, business meals, and other Referrer functions) are allowed. Seller may terminate this Agreement for breach if Referrer violates this provision.
4.2 Seller Representations and Warranties.
a. Seller represents and warrants to Referrer that Seller is an entity duly organized, validly existing, and in good standing under the laws of its jurisdiction of incorporation, and that it has the requisite corporate power and authority to execute and deliver this Agreement and to perform all of its obligations hereunder; and
b. the materials provided to Referrer by the Seller under this Agreement will not infringe any IP rights of a third party.
4.3 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL SELLER MATERIALS AND SERVICES ARE PROVIDED “AS IS,” AND “WITH ALL FAULTS” AND SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, AND HEREBY FULLY DISCLAIMS ALL OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
5. INDEMNIFICATION
5.1 Referrer agrees to indemnify, defend, and hold Seller, its affiliates, subcontractors, or end users, and each of their officers, employees, and subcontractors (singularly or collectively, “Seller Parties”) harmless against any demand, claim, action, proceeding, or losses, liabilities, damages, and claims, and all related costs and expenses (including any and all legal fees and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest, and penalties) suffered or incurred by the Seller Parties arising out of or in connection with any:
a. death or personal injury of any person, or the loss, damage to, or loss of use of any real or personal property caused by any act or omission of Referrer;
b. negligence, fraud, dishonesty, or reckless or willful misconduct of Referrer and/or any of its affiliates or representatives;
c. failure or alleged failure by Referrer to comply with any obligation, warranty, or representation under this Agreement;
d. breach of applicable law by Referrer, its affiliates and/or their agents; or
e. demand, claim, action, or proceeding brought by a third party alleging that Referrer’s performance under this Agreement or any materials provided by Referrer to Seller or a Qualified Customer in connection with this Agreement, or the use by the Seller of Referrer materials, or the use by the Seller or a Qualified Customer of Referrer’s materials, infringes or violates the rights of a third party, including any rights of privacy, confidentiality, or IP of that third party.
5.2 Seller agrees to indemnify, defend, and hold Referrer harmless against any demand, claim, action, proceeding, or losses, liabilities, damages, and claims, and all related costs and expenses (including any and all legal fees and reasonable costs of investigation, litigation, settlement, judgment, appeal, interest, and penalties) suffered or incurred by Referrer arising out of or in connection with any:
a. death or personal injury of any person, or the loss, damage to, or loss of use of any real or personal property caused by any act or omission of Seller;
b. breach of applicable law by Seller, its affiliates and/or their agents;or
c. demand, claim, action, or proceeding brought by a third party alleging that the Seller’s materials and the use by Referrer in accordance with this Agreement and Seller’s instructions infringes or violates the IP rights of a third party.
5.3 In the event a third party claim is made under this Section 5, the relevant indemnified party shall:
a. notify the indemnifying party as soon as practicable of the claim;
b. give the indemnifying party the option to conduct the defense of the claim, including negotiations for settlement or compromise before the institution of legal proceedings;
c. provide the indemnifying party with reasonable assistance in conducting the defense of the claim; and
d. with respect to infringement claims, permit the indemnifying party to modify, alter, or substitute the relevant infringing material to render it non-infringing.
6. NON-EXCLUSIVITY AND RESTRICTIONS
6.1 Referrer acknowledges and agrees that Seller is appointing Referrer under this Agreement on a non-exclusive basis, and Seller may market the Services to any person or entity under this Agreement.
6.2 Nothing in this Agreement authorizes Referrer to perform any activities or services on behalf of Seller except to the extent expressly permitted under this Agreement. Without limiting the foregoing, Referrer shall not:
a. in any way represent itself to be Seller, agent of Seller, or otherwise permitted to bind Seller to a sale or any other legal obligation;
b. approach any existing Seller’s customers to market any Service;
c. engage in any direct digital marketing (email or short messaging services) conduct in the name of, or on behalf of, Seller;
d. represent, designate, or otherwise pass itself or any of its subsidiaries or affiliates as a Qualified Customer;
e. incur any liabilities on behalf of Seller, or create or assume any obligation on behalf of Seller;
f. make any representation, warranty, guaranty, or promise in any matter in relation to Seller or the Seller’s Services on behalf of Seller, or otherwise attempt to bind Seller to any such representation, warranty, guaranty or promise;
g. modify any materials provided to Referrer without Seller’s express written consent;
h. quote, offer any discount to, or represent that the prices of the Services are anything except as communicated by Seller;
i. do or assist in anything which may prevent or adversely affect the sales of the Services or other Seller products or services;
j. provide or display any marketing or promotional material for the Services other than that supplied by Seller or material which Seller has pre-approved in writing (but such material may only be used to the extent approved by Seller);
k. perform any act purporting to have or do anything that would portray Referrer as having the authority (apparent, ostensible, or otherwise) to consummate the sale of the Service;
l. make any criticism or negative comment that would portray Seller or its products in a negative light; or
m. expressly or impliedly do anything which may suggest to any third party that Referrer is authorized to perform any activities or services beyond those permitted in this Agreement.
6.3 If the Referrer is a natural person the Referrer shall promptly inform Seller if Referrer has accepted an offer of employment with any other person or entity that markets or sells products or services that directly or indirectly competes with Seller’s Services (“Competitor”). Except where prohibited by applicable law, Referrer shall promptly notify Seller if Referrer has a reasonable expectation that there may be a direct or indirect change of control of Referrer, resulting from a merger, consolidation, stock transfer, or sale of all or substantially all of the assets related to this Agreement of Referrer or similar transaction related to Referrer.
7. PURCHASE PROCESSING
7.1 The parties acknowledge and agree that Seller (not Referrer) shall enter into a contract with each Qualified Customer in respect of the terms and conditions governing Seller’s supply of the Services and the Qualified Customer’s receipt and use of the Services.
7.2 Referrer shall:
a. distribute Seller’s materials to potential or Qualified Customers in accordance with this Agreement and Seller’s instructions; and
b. keep complete and accurate records of matters relating to Qualified Customer referred to Seller during the Term and the twenty-four (24) month period thereafter, which shall be provided to Seller upon request;
7.3 All completed purchases by Qualified Customers will be reviewed by Seller and are subject to rejection by Seller in its sole and exclusive discretion. Seller shall be solely responsible for:
a. fulfilling any purchase orders from Qualified Customers for the Services;
b. issuing invoices to Qualified Customers for Services; and
c. collecting payment from Qualified Customers for the Services.
8. REPORTS
8.1 Within ten (10) business days following the end of each calendar year, Referrer shall provide Seller a written report setting out:
a. a list of Qualified Customers it has actively marketed the Services to, including those to whom it has provided Seller’s marketing materials;
b. a list of Qualified Customers from Referrer;
c. the details of Qualified Customers that Referrer will actively approach and market the Services to and other statistical forecasts which Seller reasonably requires to develop Service distribution budgets and forecasts; and
d. any feedback provided by Qualified Customers and potential Qualified Customers.
9. CONFIDENTIALITY
9.1 “Confidential Information” means any information, excluding Excluded Information, (defined below) whether in written, graphic, oral, tangible, intangible, electronic, or other form relating to the know-how, formulae, statistics, processes, business plans, business methods, marketing, pricing, trading, and merchandising methods and information, research, and product development, business strategies, promotional plans, specifications, records, drawings, reports, samples, financial information, financial models, inventions, long-term plans, user and consumer data, databases and profiles, computer software, contractual business, and financial arrangements with third parties, trade secrets, information regarding the personnel and directors and other employees and agents of the disclosing party and shall include any other information which:
a. is notified by the disclosing party as being confidential; and/or
b. any other information which by its nature is deemed to be Confidential Information.
9.2 “Excluded Information” is any information that:
a. the receiving party can show was known to it or in its possession prior to disclosure thereof by the disclosing party;
b. is or becomes publicly known, otherwise than pursuant to a breach of this Agreement by any party;
c. the receiving party can show was developed independently by the receiving party in circumstances that do not amount to a breach of the provisions of this Agreement;
d. the receiving party is obliged to disclose to satisfy an order of a court of competent jurisdiction or to comply with the provisions of any law or regulation in force from time to time; provided that in these circumstances, the receiving party shall give the disclosing party the right and opportunity to take whatever steps it deems necessary to protect its interests in this regard, and provided further that the receiving party will disclose only that portion of the information which it is legally required to disclose and will use its best endeavors to protect the confidentiality of such information to the widest extent possible in the circumstances;
e. is disclosed by the receiving party to a third party pursuant to and in accordance with the prior written authorization of the disclosing party; and/orf. is lawfully received by the receiving party from a third party who did not obtain it under a pledge of secrecy from the disclosing party or in circumstances that do not result in a breach of the provisions of this Agreement.
9.3 Each party agrees to keep confidential, and not to use or disclose, other than as permitted by this Agreement, any Confidential Information of the other party. These obligations of confidence extend to Confidential Information provided to or obtained by a party prior to entry into this Agreement.
9.4 Each party may use or disclose Confidential Information of the other only on a “need-to-know” and confidential basis:
a. with the prior written consent of the other party;
b. to its officers, agents, professional advisers (including lawyers), or employees under enforceable obligations to retain the confidentiality of such Confidential Information consistent with the terms in this Section 9; or
c. to potential Qualified Customers where the Confidential Information is contained in marketing materials provided by Seller to Referrer, provided that:the Confidential Information is only disclosed to the potential Qualified Customer in accordance with this Agreement and solely to the extent such Confidential Information needs to be disclosed to such Qualified Customer for the purpose of this Agreement; andprior to disclosing the Confidential Information to any Qualified Customer, such Qualified Customer agrees in writing to keep such information confidential at least to the extent required under this Agreement; or in the case of use or disclosure by Seller only, to Seller’s affiliates, service providers, contractors, subcontractors, or other third parties whom Seller engages, or is considering engaging.
9.5 Each party that discloses Confidential Information of the other shall ensure that such information is kept confidential by the recipients on the terms of this section.
10. PRIVACY AND SECURITY
10.1 Referrer recognizes that Qualified Customers, its employees and representatives may provide information about natural persons (including any personal information or data provided by a Qualified Customer as part of Referrer’s contact with them) that may be subject to privacy laws and regulations governing the use and security of such information. As between the parties, Seller and Referrer agree that each acts as independent controller/businesses with regard to the collection and use of this personal information, and that each party has an independent obligation to safeguard such information from unauthorized or improper disclosure in a manner consistent with all applicable laws and regulations. Seller is not responsible for any processing of this information by Referrer, and Seller, not Referrer, is obligated to comply with such privacy laws and regulations after with respect to its processing of this personal information without any obligation to account to Referrer.
10.2 Referrer acknowledges and agrees that Seller will process personal information relating to Referrer’s employee’s and other contacts provided to Seller in connection with administering Referrer’s participating in the Gorgias’ Referral Program as set forth in Gorgias’s Privacy Policy, which is incorporated herein in full by this reference.
10.3 Referrer also agrees that the sharing of this personal information with Seller is for the purpose of Seller consummating a transaction with Qualified Customers, and not a transfer or sharing of such personal information for monetary or other valuable consideration to Referrer.
10.4 Each party is solely responsible for providing any notices or other disclosers concerning each party’s processing of personal information in a manner required under applicable law.
10.5 The parties shall negotiate in good faith and take such reasonable steps as required under applicable laws to legally permit the transfer of personal information or data to Seller originating from a jurisdiction outside of the United States, its territories and possessions, including from the members of the European Economic Area, where applicable law restricts such transfers without adequate measures of protections, including entering into standard contractual clauses or agreements (e.g., the EU GDPR Standard Contractual Clauses (Controller-to-Controller)).
10.6 Referrer shall apply to Seller’s Confidential Information and other Seller Materials (defined below) in its possession the level of security at least commensurate to a level that is consistent with best industry standards to prevent any unauthorized use, copying, publication, or dissemination of Seller Confidential Information or other materials.
10.7 Each party acknowledges that any violation of the other party’s IP rights or Confidential Information may result in immediate and irreparable damage to such other party, and that no adequate remedy at law exists for such violations, and each party agrees that such other party shall be entitled, without prejudice to any other right or remedies that may be available to such other party, to the remedies of injunction, specific performance, or other equitable relief in any court of competent jurisdiction to stop and prevent such actions by the violating party.
11. INTELLECTUAL PROPERTY
11.1 As between the parties, each party is and shall remain the sole and exclusive owner of all right, title, and interest in and to its IP. Each party acquires no rights to any of the other party’s background IP under this Agreement except for the limited rights specifically and expressly granted by this Agreement.
11.2 “Seller Material” means any materials, data, information, or technology (including any applications, methodologies, templates, tools, ideas, processes, procedures, practices, specifications, requirement documents, software, reports, guides, diagrams, techniques, marketing materials, and training materials) provided to Referrer by or on behalf of Seller under this Agreement, any derivative works of, modifications, updates, enhancements, or improvements to the foregoing, whether made by or on behalf of Seller or Referrer, and any IP therein. As between the parties, Seller is and shall remain the sole and exclusive owner of all right, title, and interest in and to the Seller Materials, including any IP therein and thereto. Referrer acknowledges and agrees that it does not acquire any rights to the Seller Material except for the limited license expressly granted by this Agreement.
11.3 “Feedback IP” means any IP in and to any ideas, feedback, and suggestions provided by Referrer and its employees to Seller and its affiliates, including any outputs, data, processes, documentation, or other materials, during the performance of its obligations under this Agreement, including all information and marketing materials in reports delivered to Seller by Referrer in connection with this Agreement whether alone or jointly with Seller. Seller shall own all worldwide right, title, and interest in and to the Feedback IP, and Referrer shall not have any right, title, or interest in the Feedback IP. Referrer further acknowledges that all Feedback IP shall be considered work-made-for-hire by Referrer for Seller, and Seller shall then own all United States and international copyrights in the Feedback IP. Without limiting the foregoing, to the extent otherwise necessary to perfect Seller’s ownership therein, Referrer hereby assigns and agrees to assign [and shall ensure that its personnel assign] to Seller all worldwide right, title, and interest in and to any and all Feedback IP, and Referrer shall [and shall procure that its personnel] execute such documents and take such lawful actions as Seller may request, at Seller’s reasonable expense, to evidence and perfect the above assignment and to secure all worldwide IP rights and protections with respect to such Feedback IP. All Feedback IP will be deemed Seller Materials upon their delivery or communication to Seller.
11.4 Seller hereby grants and agrees to grant to Referrer a non-exclusive, non-assignable, non-transferable, non-sublicensable, and fully paid-up license to use Seller Materials solely to the extent necessary to perform Referrer’s obligations under this Agreement.
11.5 Nothing in this Agreement grants Referrer a right to use Seller’s name, trademarks, or logos, promotionally or otherwise, without Seller’s prior written consent, including any press releases or website displays, except that Referrer may use Seller Materials that contain Seller’s name, trademarks, or logos in accordance with the license grant and limitations under this Agreement.
12. RIGHT TO TERMINATE
12.1 Seller may terminate this Agreement with immediate effect, by notice to Referrer:
a. without cause, if Seller provides at least thirty (30) days’ prior written notice to Referrer;
b. if Referrer is an individual, if Referrer becomes an employee of a Competitor;
c. if there is a reasonable expectation that there may be a direct or indirect change of control of Referrer or a direct or indirect change of control of Referrer has occurred, as a result of a merger, consolidation, stock transfer, or sale of all or substantially all of the assets related to this Agreement of Referrer or similar transaction related to Referrer, in favor of a Competitor;
d. if Referrer improperly discloses Confidential Information in a manner that violates this Agreement; or
e. if Referrer does anything that damages, or is likely to damage, the reputation or any brand of Seller or its affiliates.
12.2 Either party may terminate this Agreement in whole or in part and with immediate effect, by notice to the other party:a. if the other party breaches any obligation under this Agreement, the breach is capable of remedy, and the party in breach does not remedy that breach within ten (10) business days of receipt of a notice from the non-breaching party specifying the breach and requiring the breach to be remedied;b. immediately upon notice if the other party breaches any obligation under this Agreement, and the breach is incapable of remedy; orc. if the other party makes a general assignment for the benefit of its creditors, commences, or has commenced against it, proceedings under any bankruptcy, insolvency, or debtor’s relief law, which proceedings are not dismissed within sixty (60) calendar days, or is liquidated or dissolved.
12.3 On expiry or termination of this Agreement for any reason:
a. a Qualified Customer lead introduced by Referrer up to the effective date of such expiration or termination shall remain a Qualified Customer, and subject to the Referral Fee payment for sales to such Qualified Customers during the Term and for sales during a period of thirty (30) days after expiration of the Term for Qualified Customers referred to Seller during the Term;
b. all licenses granted to Referrer under this Agreement shall immediately terminate;
c. each party shall destroy or return and make no further use of any Confidential Information (and all copies of the Confidential Information) of the other party, except that Seller shall not be required to destroy, return, or not make further use of any Confidential Information of a Qualified Customer;
d. Seller shall remain liable for any Referral Fee due to Referrer as provided in this Agreement ; and
e. Sections 4 (Representations and Warranties), 5 (Indemnification), 6 (Exclusivity and Restrictions), 9 (Confidentiality), 10 (Privacy and Security), 11 (Intellectual Property), 12 (Right to Terminate), and 14 (Limitation of Liability) will survive termination or expiry of this Agreement, together with any other term which by its nature is intended to do so.
13. ENTIRE AGREEMENT
13.1 This Agreement constitutes the entire agreement among the parties hereto with respect to the transactions contemplated and supersedes all prior agreements, understandings, letters of intent, and negotiations, both written and oral, among the parties with respect thereto.
14. LIMITATION OF LIABILITY
14.1 SUBJECT TO SECTION 14.2 AND SECTION 14.3, ANY CLAIM BY A PARTY AGAINST THE OTHER PARTY WILL BE LIMITED TO THE REFERRAL FEES DUE AND PAYABLE UNDER THIS AGREEMENT FOR THE PERIOD OF [TWELVE (12) MONTHS] PRIOR TO THE DATE IN WHICH SUCH CLAIM AROSE.
14.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT AND SUBJECT TO SECTION 14.3, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE PARTIES SHALL NOT BE LIABLE TO EACH OTHER FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION, LOSS OF PROFIT, REVENUE, ANTICIPATED SAVINGS, BUSINESS TRANSACTIONS, OR GOODWILL OR OTHER CONTRACTS WHETHER ARISING FROM NEGLIGENCE OR BREACH OF CONTRACT.
14.3 THE LIABILITY LIMITATIONS AND EXCLUSIONS IN THIS SECTION 14 WILL NOT APPLY, AND WILL HAVE NO LEGAL FORCE OR EFFECT, TO ANY LOSSES, DAMAGES OR CLAIMS RELATED TO BREACH OF IP, CONFIDENTIALITY, INDEMNIFICATION UNDER THIS AGREEMENT, OR CAUSED BY THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD OF THE OTHER PARTY.
15. GOVERNING LAW
15.1 This Agreement shall be governed by the laws of California, without regard to its conflict of laws rules that might cause the application of the laws of any other jurisdiction. Other than as necessary to enforce any final judgment, award, or determination, any action brought pursuant to or in connection with this Agreement shall be brought only in the state courts of or federal courts in California without regard to its conflict of laws provisions, and both parties submit to the personal jurisdiction of such courts and waive any objections to venue of such courts.
16. COMPLIANCE
16.1 Referrer will comply with all applicable commercial and public anti-bribery laws ("Anti-Bribery Laws"), including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act of 2010, which prohibit corrupt offers of anything of value, either directly or indirectly to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. "Government officials" include any government employee; candidate for public office; and employee of government-owned or government-controlled companies, public international organizations, and political parties. Furthermore, Referrer will not make any facilitation payments, which are payments to induce officials to perform routine functions they are otherwise obligated to perform. If Referrer becomes aware of suspicious, illegal or fraudulent activity occurring in relation to this Agreement, Referrer will report the suspicious or fraudulent activity to Seller within twenty (24) hours of identifying the suspicious or fraudulent activity.
16.2 Referrer will comply with all applicable export and re-export control laws and regulations, including (i) the Export Administration Regulations maintained by the U.S. Department of Commerce, (ii) trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control, and (iii) the International Traffic in Arms Regulations maintained by the U.S. Department of State.
17. MISCELLANEOUS
17.1 Seller may at any time novate, assign, or transfer in whole or in part its rights and obligations under this Agreement to an affiliate, subsidiary, or creditor of Seller. To the extent necessary, Referrer hereby consents to such novation, assignment, or transfer.
17.2 Referrer may not novate, assign, or transfer in whole or in part any of its rights or obligations under this Agreement without the prior written consent of Seller.
17.3 Referrer shall not subcontract any of its obligations under this Agreement.
17.4 The parties will be deemed to be independent contractors. Nothing in this Agreement shall create any legal partnership, joint venture, agency, franchise, employment relationship or any other relationship between the parties beyond the relations set out in this Agreement.
17.5 If any section or part of any section is held by a court to be invalid or unenforceable, that section or part of a section is to be regarded as having been deleted from this Agreement, and this Agreement otherwise remains in full force and effect.
17.6 All notices and any other communications whatsoever (including, without limitation, an approval, consent, demand, query, or request) by either party in terms of this Agreement or relating to it shall be given in writing, and shall be sent by registered post, or delivered via email to the recipient party at its relevant address set out in the Referral Program Guide.
17.7 In no event shall this Agreement be governed by the United Nations Convention on Contracts for the International Sale of Goods.
17.8 Except as otherwise specified herein, this Agreement constitute the entire agreement between Seller and Referrer, superseding any prior or contemporaneous oral or written agreements between the parties with respect to the Referral Program and the Services available under the Program.
17.9 The Agreement and all of its provisions may not be amended or waived unless agreed upon in writing signed by the parties hereto.
