MUTUAL REFERRAL AGREEMENT
1. Appointment. Each party (each a “Recipient”) hereby appoints the other party (each a “Referring Party”) as a non-exclusive, independent referral source for such party’s products and services (“Products”), subject to the terms and conditions of this Agreement.
2. Referral Process.
2.1 Referrals to ROI. Subject to the terms and conditions of this Agreement, Company, in its capacity as a Referring Party, may refer potential customers (“Potential Customers”) to ROI by submitting the Partner Referral Registration form or hyperlink to be provided by ROI following submission of a referral request. ROI, as Recipient shall have the opportunity to evaluate and either accept or reject the referral of each Potential Customer. Each accepted Potential Customer referral shall be an “Approved Lead.”
2.2 Referrals to Company. Subject to the terms and conditions of this Agreement, ROI, in its capacity as a Referring Party, may refer Potential Customers to Company by a previously discussed method (web form, email or phone call). A Potential Customer shall become an Approved Lead of Company unless Company rejects the referral within seven (7) days of submission of the Potential Customer to Company.
2.3 Recipient’s Discretion to Enter into Agreement with Customer; Disputes as to Source. The Recipient, in its sole discretion, shall have the option to enter into, or decline to enter into, an agreement with any Potential Customer and to determine the terms and conditions of such agreement. In the event the Recipient declines, for any reason, to enter into an agreement with any Potential Customer, the Recipient shall have no obligation to the Referring Party under this Agreement or otherwise with respect to such Potential Customer.
2.4 Referral Fees. If a Potential Customer becomes an Approved Lead and the Recipient enters into an agreement with such Potential Customer within ninety (90) days of such Potential Customer being referred to the Recipient by the Referring Party, such Potential Customer shall be considered a “Customer” for purposes of this Agreement and the Recipient shall pay a referral fee to the Referring Party (“Referral Fee”) as set forth in Section 4.
2.5 Denial of Prospective Customer. Either party as a Recipient shall have the right to deny any lead for any reason, including due to the fact that the Potential Customer: (i) has previously entered into an agreement with the Recipient or is already a customer; (ii) has previously been referred or introduced to the Recipient by any other person; and/or (iii) is a current prospect of the Recipient. In the event the referral of a Potential Customer is disputed among one or more referral sources, the Recipient alone shall determine which party, based solely upon who first provided the Recipient with written notice of such Potential Customer, is entitled to a Referral Fee, if any, with respect to such Potential Customer or Recipient may allocate the Referral Fee in its sole discretion.
3. Term & Termination. The term of this Agreement shall commence on the Effective Date and shall continue indefinitely unless terminated earlier as set forth herein (the “Term”). Either party may terminate this Agreement at any time by providing written notice to the other party at least thirty (30) days prior to the date of termination (the “Termination Date”). Upon termination of this Agreement, a list shall be prepared of all pending unfinished business involving any Customers or Potential Customers introduced by the Referring Party (which list shall be agreed to and signed by both parties hereto and shall control any and all claims for Referral Fees after the Termination Date). In no event shall the above referenced list include any third parties that were not identified to the Recipient by the Referring Party as Potential Customers as required herein prior to giving notice of termination. Termination of this Agreement shall not release the parties from their continuing duties or obligations under this Agreement, release either party from its obligation to pay Referral Fees earned through the date of termination as required herein, or affect the rights or obligations of the parties hereto with respect to any breach of this Agreement prior to the Termination Date. Notwithstanding anything in this Section 3 to the contrary, the Referring Party shall not be entitled to any Referral Fees due to it as of the Termination Date if this Agreement is terminated by the Recipient for cause as hereinafter defined. As used herein, “cause” shall mean any breach of Sections 5.1, or 8 of this Agreement by the Referring Party.
4. Referral Fees.
4.1 As full compensation for the services rendered to the Recipient by the Referring Party under this Agreement, the Recipient shall pay the Referring Party a Referral Fee from the sales of Software Products and services as set forth on the Referral Partnership Agreement.
4.2 Upon termination of this Agreement as provided in Section 3 hereof, the Recipient shall continue to pay Referral Fees on the basis set forth in Section 3 and Section 4.1 above.
5. Acting as Finder Only; Non-Exclusivity.
5.1 It is understood that the Referring Party is acting as a finder only and shall have no authority to enter into any agreements, obligations or commitments on the Recipient’s behalf, or to negotiate the terms of Potential Customers’ agreements with the Recipient. The Referring Party hereby agrees to indemnify, defend and hold the Recipient harmless from and against any claims, actions, lawsuits, damages, awards or judgments arising out of any such agreements, obligations, or commitments undertaken by the Referring Party or the breach thereof.
5.2 The Referring Party acknowledges that the Recipient may enter into referral agreements or other similar arrangements with other parties and that the Referring Party shall have no rights under such agreements or to any fees for customers referred to the Recipient by others or identified by the Recipient itself.
6. Relationship; Mutual Cooperation. This Agreement does not constitute a contract of employment. ROI and Company intend and agree that each shall serve as an independent contractor of the other and no acts or assistance given to either party shall be construed to alter the independent contractor relationship. Nothing contained in this Agreement shall be construed to place the parties in a relationship of partners, joint venturers, principal and agent, or employer and employee.
7. Taxes. Each party is solely responsible for the withholding and payment of all taxes (including, but not limited to, federal and state income taxes, payroll taxes and withholding, unemployment insurance taxes, self-employment taxes and any other taxes or business license fees, and interest and penalties on such taxes and fees), unemployment insurance, worker’s compensation insurance, and any and all other assessments imposed or related to such party’s activities hereunder. The parties shall file all tax returns consistent with the foregoing. If it is determined at any time that a party is not an independent contractor under this Agreement, such party shall indemnify the other for all taxes, interest, penalties, expenses, and any other costs resulting from or arising out of such determination.
8. Confidentiality. Each party acknowledges that by reason of its relationship to the other party hereunder, it may have access to certain information and material concerning such other party’s business, plans, customers, technology and products that are confidential and of substantial value to such other party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”). The party receiving Confidential Information agrees that it will not use in any way for its own account or the account of any third party, nor disclose to any third party, any such Confidential Information revealed to it by the disclosing party. The Confidential Information obligations set forth in this Section 8 shall not apply to any portion of Confidential Information (i) which is, or subsequently may become, within the knowledge of the general public through no fault of the receiving party; (ii) which may be known to the receiving party at the time of receipt thereof from the disclosing party; or (iii) which may subsequently be rightfully obtained from a third-party without violating any confidentiality obligations to the disclosing party. Additionally, disclosure of Confidential Information which must be disclosed pursuant to applicable law, rule, regulation, order, decision, decree, subpoena or other judicial, administrative or legal process shall not violate the obligations of this Agreement, provided, however, that the disclosing party receives prior written notice of such disclosure and that the receiving party takes all reasonable and lawful actions to obtain confidential treatment for such disclosure and, if possible, to minimize the extent of such disclosure. In the event of termination of this Agreement, there shall be no use or disclosure by the receiving party of any Confidential Information of the disclosing party and any materials related to the disclosing party shall be immediately returned to such disclosing party. The receiving party acknowledges that the provisions of this Section 8 are reasonable and necessary for the protection of the disclosing party and that the disclosing party will be irrevocably damaged if such covenants are not specifically enforced.
9. Publicity. Except for any announcement intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of either party, all media releases, public announcements or public disclosures (including, but not limited to, promotional or marketing material) by either party or its employees or agents relating to this Agreement or its subject matter, or including the name, trade names, trademarks, or symbols of the other party, are prohibited without the prior written consent of both parties, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either party may include the name and logo of the other party in lists (including on its website) of partners or vendors in accordance with the other party’s standard logo and/or trademark usage guidelines.
10. Disclaimer of Warranties. EACH PARTY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE PRODUCTS, WHICH ARE PROVIDED SOLELY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN SUCH PARTY AND ITS CUSTOMER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAW, INCLUDING WITH RESPECT TO VALIDITY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER INDIVIDUAL OR ENTITY AFFILIATED THEREWITH FOR ANY CLAIM, LOSS OR DAMAGE ARISING OUT OF THE OPERATION OR AVAILABILITY OF THE PRODUCTS.
11. Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the third business day after mailing; (c) the second business day after sending by confirmed facsimile; or (d) the second business day after sending by email.
12. Miscellaneous. The rights and obligations of the parties under the Agreement shall inure to the benefit of and shall be binding upon the parties’ respective successors and assigns. Each party’s obligations are personal in nature and cannot be assigned in whole or in party to any other person or entity without the other party’s prior written consent. In the event of breach of any provisions of the Agreement, each party may seek damages if determinable, injunctive relief, and, in addition to which, each party shall be entitled to reasonable attorneys’ fees incurred in the enforcement of said provisions. The remedies herein provided shall be cumulative and no single remedy shall be construed as exclusive of any other or of any remedy provided at law. Failure of the injured party to exercise any remedy at any time shall not operate as a waiver of the right of such injured party to exercise any remedy for the same or subsequent breach at any time thereafter. This Agreement contains the entire understanding of the parties. It may not be changed orally but only by an agreement in writing signed by the party against whom enforcement of any waiver, change, modification, extension or discharge is sought. By signing below, each party acknowledges receipt of a copy of this Agreement. Every provision of this Agreement is intended to be severable from every other provision of this Agreement. If any provision of this Agreement is held to be void or unenforceable in whole or in part, the remaining provisions will remain in full force and effect, unless the remaining provisions are so eviscerated by such holding that they do not reflect the intent of the parties in entering into this Agreement. In such event, the parties agree to negotiate in good faith on replacement language. If any provision of this Agreement is held to be unreasonable or excessive in scope or duration, that provision shall be enforced to the maximum extent permitted by law. This Agreement shall be interpreted and enforced in accordance with the internal laws of the State of Indiana without regard to its choice of law provisions. Each party agrees to and hereby does submit to jurisdiction before any state or federal court of record in Marion County, Indiana, for that purpose, and each party hereby waives any right to raise the questions of jurisdiction and venue in any action that the other party may bring to any such court.
12.1 Construction of Agreement. This Agreement is the result of negotiation and compromise. In interpreting this Agreement, neither party shall be considered to be the drafter of the document and the language should not be strictly construed against either party. The language of the Agreement should be interpreted consistent with the ordinary and reasonable meaning of the words used.