This client referral agreement is between Auviso Inc., a Delaware corporation (“Company”) and the person or entity accepting this agreement (“Consultant”), either by clicking a box indicating Consultant’s acceptance or by executing a writing that incorporating this agreement. The parties agree as follows:
1. Appointment; Services. Company hereby appoints Consultant as a non-exclusive referral consultant of Company. During the Term defined below), Consultant may refer to Company third parties who, in Consultant’s reasonable opinion, have a requirement for Company’s products and services (collectively, “Services”). Consultant will submit referrals of any such third party (each, a “Prospective Client”) to an authorized representative of Company in accordance with Company’s written instructions. Notwithstanding anything in this agreement to the contrary, each of the following will not be deemed a “Prospective Client”: (1) Consultant; (2) any third party (including affiliates and subsidiaries of any such third party) previously referred to Company by Consultant or other referral consultant as a Prospective Client in the 90-day period prior to the date Consultant refers such third party to Company as a Prospective Client; or (3) any third party that has requested a proposal for Services from Company in the 90-day period prior to the date Consultant refers such third party to Company as a Prospective Client. If Company elects to enter into a Services Agreement (defined below) with any Prospective Client (each, an “Introduced Client”), Company shall notify Consultant in writing of such election promptly after the date Company and such Introduced Client enter a Services Agreement. Nothing in this agreement obligates Company to transact any business with any Prospective Client. Company is solely responsible for all sales, implementation, customer support, invoicing, and collections relating to the Services, except that Consultant shall, upon Company’s reasonable request, use commercially reasonable efforts to assist Company with its efforts to sell Services to Prospective Clients. Each party shall (1) comply with all policies of the other party and all laws, rules, and regulations applicable to the respective party’s performance hereunder; (2) conduct its performance hereunder in a manner that would not reasonably be expected to bring the other party or its products or services into public disrepute, scandal, or ridicule; and (3) not directly or indirectly engage in false, deceptive, misleading, or unethical practices with respect to promotion and marketing of the Services.
2. Compensation. With respect to any agreement between Company and an Introduced Client for Services (including any amended agreement, extended agreement, and subsequent agreement between Company and such Introduced Client), entered into during the Term or within three months after the last day of the Term (each, a “Services Agreement”), then Company shall pay to Consultant, as Consultant’s sole compensation for its performance hereunder, a fee (“Referral Fee”) as follows: 15% of the Gross Revenue (defined below) in respect of such Services Agreement. “Gross Revenue” means the total amount invoiced to an Introduced Client by Company during the initial 12-month period commencing on effective date of such Introduced Client’s Services Agreement, less the Company’s total service costs incurred by the Company in connection with such Services Agreement. Company shall pay to Consultant any Referral Fees within 30 days after receipt by Company of amounts on which the corresponding Referral Fees are based. If the Company refunds to an Introduced Client any amounts on which Consultant was paid a Referral Fee, the Company may deduct the corresponding amount from future Referral Fee payments. Company shall pay all Referral Fees by check or electronic funds transfer in accordance with Consultant’s instructions. Section 2 will survive any termination of this agreement.
3. Trademarks; Sales Materials. Company hereby grants to Consultant a limited, revocable, non-exclusive, non-transferrable, royalty-free, and fully paid-up license to use Company’s trademarks solely in connection with Consultant’s performance hereunder. Company shall, upon Consultant’s reasonable request, provide Consultant with marketing and promotional materials for the Services.
4. Term; Termination. This agreement is effective as of the date hereof and will continue until terminated in accordance with terms hereof (“Term”). Either party may terminate this agreement, for any reason or no reason, by giving 30 days’ written notice of termination to the other party.
5. Limitation on Liability. COMPANY WILL NOT BE LIABLE TO CONSULTANT FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES, HOWEVER CAUSED AND REGARDLESS OF LEGAL THEORY OR FORESEEABILITY, DIRECTLY OR INDIRECTLY ARISING UNDER THIS AGREEMENT OR COMPANY’S PERFORMANCE HEREUNDER. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY FOR ANY DAMAGES (DIRECT OR OTHERWISE) OR PENALTIES OR LOSS, REGARDLESS OF THE FORM OF ACTION OR CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE EXCEED THE AMOUNT OF COMPENSATION PAID TO CONSULTANT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH ACTION OR CLAIM.
6. Miscellaneous. Company’s engagement of Consultant is on a non-exclusive basis, and Company may engage other parties to perform similar referral services during the Term. The parties are independent contractors, and nothing in this agreement creates a partnership, joint venture, or employment relationship between the parties. Notices given hereunder must be in writing, delivered personally, sent by certified or registered mail or nationally recognized overnight delivery service or by email (with delivery confirmation). If to Company, notice must be sent to the address set forth in the introductory clause. If to Consultant, notice must be sent to Consultant’s address stated on the signature page to this agreement. Either party may change its address for notices by giving notice of such change in the manner provided in this section 6. No delay or omission or failure to exercise any right or remedy provided for herein will be deemed to be a waiver thereof and any single or partial exercise of any such right or remedy, power, or privilege will not preclude any later exercise thereof. This agreement and all disputes arising out of, or relating to this agreement, are governed by the laws of the State of New York, without regard to its conflicts of laws principles. Each party submits to the exclusive jurisdiction of the state and federal courts located in the United States District Court for the Southern District of New York for any action or proceeding arising out of, or relating to, this agreement, and each party expressly waives any objection it may have to such jurisdiction or the convenience of such courts. The invalidity or unenforceability of any provision hereof will in no way affect the validity or enforceability of any other provision of this agreement, and, to the extent possible, the invalid or unenforceable term will be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the parties’ intentions. This agreement constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior agreements, whether written or oral, between the parties. This agreement cannot be amended except by writing signed by each party. Consultant’s obligations hereunder may not be assigned or delegated without Company’s prior written consent. This agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Section 6 will survive any termination of this agreement.