Optery for Business Referral Agreement

Optery for Business Referral Agreement Table of Contents

1. Definitions
2. Referrals and Obligations
3. Commissions; Taxes
4. Ownership
5. Warranties; Disclaimer
6. Liability Limitation
7. Term and Termination
8. Confidentiality
9. Miscellaneous

THIS REFERRAL AGREEMENT (the “Agreement”) is made effective as of the date you create your partnership account and agree to our terms (the “Effective Date”) by and between Optery, Inc., a Delaware Corporation, with an address at 6150 Center St #121, Clayton, CA 94517 (“Optery”) and your organization, (“Representative”). The parties agree as follows:

1. Definitions

1. “Customer Agreement” means the contract by which Optery agrees to supply a Customer access to and/or services in connection with any Product.
2. “Customer” means a third party referred by Representative to Optery via a valid Lead Form (that is accepted by Optery) who enters into a written Customer Agreement with Optery for Business.
3. “Net Revenue” means the fees actually received by Optery under an Optery for Business Customer Agreement, exclusive of: (a) sales, excise and similar taxes; (b) returns, refunds, allowances, discounts and adjustments; and (c) amounts attributable to third party products, applications or integrations offered by Optery, training, professional services, annual renewals, overages, or additional purchase of Optery or third party services.
4. “Products” means the products and services provided to Customers by Optery, including any successor line of products or services.
5. “Prospect” means a Representative customer or other contact who may be interested in acquiring the Products.
6. “Referral Fee Percentage” is 15%.
7. “Territory” means USA.

2. Referrals and Obligations

1. Referrer Relationship. Subject to the terms and conditions of this Agreement, Optery hereby grants Representative the right to promote and refer Prospects to Optery on a nonexclusive basis in the Territory, including, but not limited to the following activities: (i) presenting Products in appropriate sales opportunities (including when it presents the Representative’s products and services to Prospects), (ii) presenting Products to Representative’s existing customer base, (iii) facilitating face-to-face meetings between Optery and the Prospect, (iv) arranging for appropriate Representative personnel to participate in introductory meetings between Optery and the Prospect, and (v) at the request of Optery, engaging in reasonable continuing assistance in connection with the finalization of a Customer Agreement with the Prospect. 
2. Lead Form. In order for Representative to be eligible to receive a Commission (as defined below) for a Prospect, such Prospect must complete a form (including, without limitation, contact information and company name) via a form created by Optery and made accessible to Representative (each, a “Lead Form”). All Lead Forms shall be subject to acceptance by Optery in its sole discretion. Optery shall have no obligation to Representative with respect to a specific Prospect (i) if such Prospect is already under written contract to receive the Products from Optery, or (ii) if Optery has been engaged in discussions with such Prospect within the six (6) months prior to receipt of a Lead Form from Representative for such Prospect, or (iii) if Representative fails to meet its obligations under Section 2.1 with respect to such Prospect. Each Lead Form will automatically expire twelve (12) months following receipt thereof by Optery if no Customer Agreement has been fully executed, and Optery is not then engaged in active contract negotiations with such Prospect. Optery reserves the right to modify the eligibility requirements set forth in this Section 2.2 at any time, upon notice to Representative.
3. Optery Materials. Optery will provide Representative, at no cost to Representative, with a reasonable quantity of materials for use in conjunction with promoting the Products hereunder (“Optery Materials”), to demonstrate the functionality of the Products, technical specifications, and other marketing materials. If Representative uses any material to promote the Products that was not provided to Representative by Optery, then Representative will send a copy of such material to Optery within two (2) days of using such material and will discontinue using such material within one (1) business day if Optery, in its sole discretion, so requests. Representative will not bid on, purchase, or use any keyword or term trademarked by Optery in any keyword advertising service, search engine, or social platform, or otherwise use any such keyword or term to direct users to Representative’s website. No rights or licenses are granted in the Optery Materials except as expressly and unambiguously set forth in this Agreement.
4. Independent Contractors. The parties are independent contractors and not partners, joint venturers or otherwise affiliated and neither has any right or authority to bind the other in any way. Accordingly, Representative shall not commit Optery to any Customer Agreement or other contract or obligation.

3. Commissions; Taxes

1. Commission. During the term of this Agreement, for each Customer Agreement executed by Optery and a Customer, Optery will pay to Representative a “Commission” equal to the product of (i) the Referral Fee Percentage and (ii) all Net Revenue actually received by Optery in respect of such Customer Agreement during the twelve (12) months following execution of such Customer Agreement.
2. Payment Terms. Commissions shall be paid within thirty (30) days after Optery receives payment from the Customer which resulted from the Lead Form submission.
3. Taxes. Each party shall be responsible for and pay any and all applicable taxes, customs, withholding taxes, duties, assessments and other governmental impositions resulting from its own activities under this Agreement.
4. Expenses. Each party will be responsible for the expenses that it incurs in connection with the performance of this Agreement, except as may otherwise be mutually agreed upon by the parties.

4. Ownership

As between the parties, Optery owns all right, title and interest in and to the Products and the Optery Materials.

5. Warranties; Disclaimer

1. Warranties. Any warranties for the Products or Optery Materials shall run directly from Optery to the Customer or Prospect. In no event shall Representative make any representation, guarantee or warranty concerning the Products, Optery Materials, or terms and conditions of any Customer Agreement, except as expressly authorized in writing by Optery. Representative shall indemnify, defend and hold harmless Optery, its directors, officers, agents, and affiliates against any liability, loss, costs, or damages arising out of or related to Representative’s breach of the foregoing sentence.
2. Disclaimer. OPTERY MAKES NO WARRANTIES TO REPRESENTATIVE, EXPRESS OR IMPLIED, AND HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING OUT OF USAGE OR TRADE, COURSE OF DEALING AND COURSE OF PERFORMANCE.

6. Liability Limitation

EXCEPT WITH RESPECT TO A BREACH OF SECTION 8 AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (I) NEITHER PARTY WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, AND (II) NEITHER PARTY’S LIABILITY SHALL EXCEED THE COMMISSIONS PAYABLE BY OPTERY TO REPRESENTATIVE DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

7. Term and Termination

1. Term. This Agreement shall be effective as of the Effective Date and shall continue in full force and effect for a period of one (1) year and shall automatically renew for successive one (1) year terms unless and until either party terminates this Agreement pursuant to Section 7.2.
2. Termination. Either party may, at its option, terminate this Agreement upon ninety (90) days written notice to the other party for any reason or for no reason whatsoever. This Agreement may also be terminated by either party upon thirty (30) days written notice if the other party breaches this Agreement in any material respect and the breaching party fails to cure such breach within such 30-day period.
3. Effect of Termination. Upon any termination or expiration of this Agreement, (i) except in cases of termination by Optery for cause, all monies due Representative will immediately become due and payable within thirty (30) days following termination or expiration; (ii) Representative shall immediately cease all promotion of the Products and shall immediately return to Optery, or at the option of Optery, destroy, all Confidential Information of Optery, Optery Materials and Products provided to Representative hereunder; and (iii) Optery may market, sell or provide the Products to any third party, without obligation to pay Representative any Commissions. Notwithstanding any termination or expiration of this Agreement, the following Sections shall survive and remain in effect: 1, 2.4, 4, 5, 6, 7.3, 8 and 9. Any termination or expiration of this Agreement shall be without prejudice to any other rights or remedies available under this Agreement or at law.

8. Confidentiality

1. Confidentiality. During the course of performing this Agreement, each party may have access to confidential or proprietary information of the other party (“Confidential Information”). Confidential Information shall include, without limitation, all customer lists and information relating to the parties’ products and pricing. A party’s Confidential Information shall not include any information which (i) becomes part of the public domain through no act or omission of the other party; (ii) is lawfully acquired by the other party on a non-confidential basis from a third party without any breach of a confidentiality obligation; (iii) is disclosed by such party to a third party without any obligation of confidentiality; or (iv) was independently developed by the other party without reference to such party’s Confidential Information. Each party agrees to use the other party’s Confidential Information only as necessary to perform their obligations under this Agreement and to maintain the confidentiality of the other party’s Confidential Information using at least the same degree of care in safeguarding the other’s Confidential Information as it uses in safeguarding its own Confidential Information, subject to a minimum standard of reasonable diligence and protection to prevent any unauthorized copying, use, distribution, installation or transfer of possession of such information. If required by law, the receiving party may disclose Confidential Information of the disclosing party, provided the receiving party gives adequate prior notice of such disclosure to the disclosing party to permit the disclosing party to intervene and to request protective orders or other confidential treatment therefor.
2. Irreparable Harm. Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the disclosing party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure in addition to other appropriate remedies, without the necessity of posting any bond or surety.

9. Miscellaneous

1. Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the provisions of the conflict of laws thereof.
2. Notices. Any notice or other communication required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given on the day of service if served personally or upon receipt if mailed by First Class mail, registered or certified, postage prepaid, and addressed to the respective parties at the addresses set forth above, or at such other addresses as may be specified by either party pursuant to the terms and provisions of this section.
3. Assignment. Neither party may assign, without the prior written consent of the other, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part; provided, however, that this Agreement may be assigned by Representative or Optery without the consent of the other to any successor corporation or entity whether by purchase of all or substantially all of the assets relating to this Agreement, a sale of a controlling interest of the capital stock of the assigning party, by merger, consolidation or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
4. Severability. Any provision of this Agreement that is determined to be unenforceable or unlawful shall not affect the remainder of the Agreement and shall be severable therefrom, and the unenforceable or unlawful provision shall be limited or eliminated to the minimum extent necessary to that this Agreement shall otherwise remain in full force and effect and enforceable.
5. Entire Agreement. This Agreement (together with all attachments and exhibits hereto) constitutes the entire agreement between the parties and supersedes any and all prior agreements between them, whether written or oral, with respect to the subject matter hereof. This Agreement may not be amended, modified or provision hereof waived, except in a writing signed by the parties hereto. No waiver by either party, whether express or implied, of any provision of this Agreement, or of any breach thereof, shall constitute a continuing waiver of such provision or a breach or waiver of any other provision of this Agreement.
6. Press Releases. Any news release, public announcement, advertisement, or other publicity released by either party concerning this Agreement shall be subject to the prior approval of the other party.