The parties desire to enter into this Agreement pursuant to which each party may refer prospective customers to the other party, subject to and in accordance with the terms and conditions of this Agreement.The parties hereby agree as follows: Referrals. Each party (a “Referring Party”) may refer leads to the other party (“Receiving Party”) for potential customers of the Receiving Party’s products. For each lead, the Referring Party will submit to the Receiving Party a completed lead referral in the form attached to this Agreement (each such lead, a “Lead Referral”). In soliciting potential Lead Referrals, a Referring Party will act ethically and in compliance with applicable law. Acceptance or Rejection of Lead Referral. The Receiving Party may reject any Lead Referral that: (i) is incomplete; (ii) references a customer to which the Receiving Party has already been referred; or (iii) references a customer with which the Receiving Party has already commenced discussions. The Receiving Party will provide the Referring Party with written acceptance or rejection of a Lead Referral within thirty (30) days following the Receiving Party’s receipt thereof (each accepted Lead Referral, an “Accepted Lead Referral”). Each Accepted Lead Referral will remain in effect for a period of twelve (12) months from the date of the Receiving Party’s acceptance thereof in accordance with the terms of this Agreement (the “Accepted Lead Referral Term”). Eligibility for Referral Fee. The Referring Party will be eligible to receive a referral fee only if: (i) prior to the expiration of the Accepted Lead Referral Term, the Receiving Party enters into a license agreement, purchase agreement or other similar agreement for the Receiving Party’s products with the customer identified in the Accepted Lead Referral (the “Referred Customer”); and (ii) the Receiving Party reasonably determines that the Referring Party had a material role in the consummation of such agreement with the Referred Customer (any such agreement that satisfies the foregoing conditions, an “Eligible Commercial Agreement”). During the Accepted Lead Referral Term, the Referring Party will not refer a Referred Customer to any competitor of the Receiving Party, as reasonably determined by the Receiving Party. Referral Fee Payment. For each Eligible Commercial Agreement, the Receiving Party will pay the Referring Party a referral fee equal to ten percent (10%) of the Receiving Party’s applicable Net Revenues on the security software, along with a fixed referral amount for deals that include insurance. For purposes hereof, “Net Revenues” means the total amounts actually received by the Receiving Party from the Referred Customer as licensing revenue pursuant to an Eligible Commercial Agreement, reduced by third-party charges, taxes, rebates, cancellations and returns. Net Revenues shall not include any amounts received by the Receiving Party from the Referred Customer for any maintenance or support services, consulting services, training or other services provided by the Receiving Party. The Receiving Party will have no obligation to pay the Referring Party a referral fee or compensation of any kind with respect to any agreement for the Receiving Party’s products that the Receiving Party enters into with a Referred Customer following the expiration of the Accepted Lead Referral Term. Payment Timing. The Receiving Party will pay the Referring Party any referral fee payable under Section 4 within thirty (30) days following the end of the quarter during which the Receiving Party actually receives payment from the applicable Referred Customer. Publicity. Neither party shall issue any press releases nor make any public statements regarding this Agreement without the prior written consent of the other party. Neither party will use the trademarks, service marks or logos of the other party, without the prior written consent of the other party. Term and Termination. This Agreement will commence as of the Effective Date and will continue for one (1) year, unless earlier terminated as provided in this Section 7. Either party will have the right to terminate this Agreement, at any time, by giving thirty (30) days written notice to the other party. The Referring Party will be entitled to payment of referral fees only with respect to Lead Referrals accepted by the Receiving Party prior to receipt by the non-terminating party of notice of termination for a period of one (1) year after termination of this Agreement. Sections 4, 5, 7, 8, 9 and 10 will survive the expiration or termination of this Agreement. Warranty Disclaimer. THE PARTIES DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGE. EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL PAYMENTS RECEIVED BY A PARTY FROM THE OTHER PARTY UNDER THIS AGREEMENT.General. Any dispute arising from, related to, or connected with this Agreement will be heard exclusively in federal or state courts located in New York County, NY. Neither party may assign or transfer this Agreement, in whole or in part, without the other party’s written consent, and any attempt to assign or transfer this Agreement, without such consent, will be null and of no effect. This Agreement will be governed by the laws of the State of New York, without regard to conflicts of law principles. The relationship of the parties is solely that of independent contractors, and not partners, joint venturers or agents. All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by certified mail, overnight express, or sent by confirmed facsimile to the recipient’s address listed above. In the event any provision of this Agreement is held to be unenforceable, the remaining provisions of this Agreement will remain in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. Any waiver, amendment or other modifications or any provision of this Agreement will be effective only if in writing and signed by the parties. Neither party will be liable by reason of failure of performance (except failure to pay) if the failure arises out of causes beyond the party’s reasonable control. Each party agrees to comply with all applicable laws, rules and regulations in connection with its activities under this Agreement. This Agreement, together with its exhibits, is the complete and exclusive statement of the agreement between the parties relating to its subject matter and supersedes all prior agreements and understandings, both written and oral, regarding such subject matter. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
In Witness Whereof, the parties have caused their authorized representatives to execute this Agreement as of the Effective Date.
Effective date: 06/06/2022