THIS REFERRAL AGREEMENT and the attached Exhibit(s) (collectively, the “Agreement”), effective as of the Effective Date set forth above, is entered into by and between Network Access Corporation DBA Vault America, a Massachusetts corporation (“Vault America”), having its principal place of business as set forth above, and the party identified above as Company (“Company”), having its principal place of business as set forth above.
BACKGROUND
Vault America is a provider of cloud storage products and services.
Company desires to locate and refer prospective suitable entities or persons desiring to purchase the Vault America products and services set forth in the attached Exhibit “A” (collectively, the “Products”) from Vault America, and Vault America wishes to receive such referrals, subject to the terms and provisions of this Agreement.
AGREEMENT
1. REFERRALS AND AUTHORITY.
1.1 Prospects. Company shall refer (as described in Section 1.2) to Vault America entities or persons that have expressed an interest in purchasing the Products from Vault America (the “Prospects”). Unless otherwise agreed by Vault America in writing, “Prospects” shall exclude any person or entity (i) with whom Vault America has a preexisting relationship; (ii) who is on Vault America’s sales forecast; or (iii) has been previously submitted by another Vault America marketing partner. Company is authorized to deliver to each such Prospect a copy of the then-current marketing materials and product literature, if any, Vault America provides to Company for such purpose (the “Materials”). Company shall use reasonable efforts to mention Vault America’s name and Company’s partnership with Vault America in connection with Company’s marketing and communication activities, including mentioning Vault America on Company’s web sites, and in advertisements, articles, and other similar communications. Company shall make no representations or warranties regarding Vault America, the Products or its business or prospects (other than those contained in the Materials) or in any other way act or represent that Company is authorized to act in a manner which would bind Vault America in any way whatsoever . Company will discontinue use of any Materials, and will return the same to Vault America, upon receipt of written notice from Vault America that such Materials have been withdrawn or replaced. Vault America will supply Company from time to time with sufficient copies of Vault America’s then-current Materials solely for use by Company in locating Prospects. Such Materials will bear Vault America’s logos and trademarks (the “Trademarks”), which are and will remain the sole and exclusive property of Vault America. Company will not misappropriate any of such Trademarks and will not remove or otherwise deface any Trademarks included on the Materials. Company shall make no use of advertisements, mass mailings or “cold calls” to persons not having a prior relationship to Company unless previously agreed to by Vault America. Company will conduct itself under this Agreement consistent with ethical business practices and in a manner that will reflect favorably upon the goodwill and reputation of Vault America.
1.2 Referrals. The “referral” of a Prospect to Vault America shall mean the fully and correctly completed Partner Referral Lead in the form specified in Exhibit B, the Vault America Partner Portal, or other means previously agreed to by Vault America.
1.3 Limited Appointment. Company shall not act on behalf of any Prospect and shall not negotiate on behalf of any Prospect or Vault America. Company’s duties under this Agreement shall be limited solely and exclusively to referring Prospects to Vault America. Company is not authorized, and does not have the right, to act as a referral source for any other product or service marketed, offered, licensed or sold by Vault America now or in the future. Vault America shall be under no obligation to enter into an agreement with any Prospect referred by Company. Vault America shall, in its sole and absolute discretion, contact, negotiate with, and enter into any agreement with any Prospect referred by Company. Company’s authorization to act as a referral source is not exclusive in any manner. Vault America reserves for itself the right to act on its own behalf, or to enter into similar agreements with others, for the purpose of selling and distributing the Products, either directly or indirectly, and, except as set forth in this Agreement Company shall not be entitled to any remuneration of any kind by reason of sales by Vault America that result from such efforts by Vault America or others.
2. FEES.
2.1 Fee Payable. Vault America shall endeavor to keep Company informed of the progress of its negotiations with each Prospect and shall notify Company of the effective date of any agreement Vault America enters into with a Prospect regarding the purchase of the Products. In consideration for Company’s services as a referral source under this Agreement, with respect to an agreement between Vault America and a Prospect regarding the purchase of the Products, provided such agreement is executed within three (3) months after the date of Company’s referral of such Prospect, Vault America shall pay Company a referral fee (the “Fee”) set forth in Section 2.2. The Fee shall be payable on a monthly basis, within thirty (30) after the end of each calendar month following receipt of the net fee by Vault America from the Prospect. Fees shall not include (a) sales or other excise taxes paid by the Prospect; (b) any sums paid to or allocated by Vault America related to the implementation, installation, maintenance, support, or providing of professional services, including consulting and/or training; (c) sums paid to Vault America for copies of third party products which Vault America is entitled to license, distribute, or sublicense to a Prospect; or (d) sums paid to Vault America for its hardware appliance products if applicable. Company shall not be paid a fee by any Prospect, or any other person or entity, in connection with the Prospect’s agreement with Vault America without the prior written consent of Vault America. Company shall not be paid any Fee related to any Prospect that has not been submitted on a Partner Referral Lead that has been accepted by Vault America.
2.2 Fee Amount. The Fee will be as stated in Exhibit C. The Fee applies to Fees related to orders from a Prospect received by Vault America following the effective date of Vault America’s contract with a Prospect. .
2.3 No Fee Payable. Company shall not be due any Fee unless the Prospect has been “referred” by Company pursuant to Section 1.2 and the Partner Referral Lead in the form attached as Exhibit B, the Vault America Partner Portal, or other means previously agreed to by Vault America has been accepted by Vault America. In addition, Company must recommend Vault America’s products to the customer exclusively; no fee will be paid for a multiple vendor recommendation in which the evaluation process is left to the customer.
3. TERM AND TERMINATION.
3.1 Term. Unless earlier terminated pursuant to Section 3.2, this Agreement shall remain in full force and subject to the terms and conditions hereof. This Agreement is effective upon acceptance and shall continue for a 12 month term. Upon completion of the initial term, and each subsequent term, the Agreement shall renew for another 12 month term thereafter unless notification is provided by either party 60 days prior to the expiration of the then current term.
3.2 Termination by Either Party. Either party may terminate this Agreement immediately upon notice to the other, if:
3.2.1 the other party breaches any obligation under this Agreement and fails to cure such breach within thirty (30) days after written notice of such breach from the non-breaching party; or
3.2.2 the other party ceases to conduct business in the normal course, becomes insolvent, enters into suspension of payments, moratorium, reorganization or bankruptcy, makes a general assignment for the benefit of creditors, admits in writing its inability to pay debts as they mature, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any other judicial or administrative proceeding that relates to insolvency or protection of creditors’ rights.
3.3 Termination Rights and Obligations. Upon the expiration or termination of this Agreement for any reason:
3.3.1 Company will deliver no additional profiles to Vault America, will make no additional referrals to Vault America and will cease to act as a referral source of Vault America under this Agreement unless agreed to in writing by Vault America.
3.3.2 Company will promptly cease using and return to Vault America all Materials.
3.3.3 Vault America will pay Company all outstanding Fees due Company pursuant to Section 2 through the effective date of such termination.
4. INDEMNITY.
Company will defend, indemnify and hold Vault America harmless from all damages, liabilities and expenses (including attorneys’ fees) arising out of any representation (other than representations made in Vault America’s then-current Materials) or misrepresentation with respect to Vault America or the Products made by Company to any Prospect or third party.
5. MISCELLANEOUS.
5.1 Governing Laws. The internal laws of the Commonwealth of Massachusetts (irrespective of its choice of law principles) shall govern the validity of this Agreement, the construction of its terms, and the interpretation and enforcement of the rights and duties of the parties.
5.2 Confidentiality. Each party acknowledges that it may be furnished with or may otherwise receive or have access to information or material that relates to past, present or future products, software (including source code and object code), research development, inventions, processes, techniques, designs or technical information and data, and marketing plans. (The “Confidential Information”). Each party agrees to preserve and protect the confidentiality of the Confidential Information and all physical forms, whether disclosed to the other party before this Agreement is signed or afterward. In addition, a party will not disclose or disseminate the Confidential Information for its own benefit or for the benefit or any third party unless otherwise provided in this Agreement. The foregoing obligations do not apply to any information that (1) is publicly known; (2) is given to a party by someone else who is not obligated to maintain confidentiality; or (3) a party had already developed prior to the day this Agreement is signed, as evidenced by documents unless, otherwise provided herein. Neither party will take or cause to be taken any physical forms of Confidential Information (nor make copies of same) without the other party’s written permission. Within three (3) days after the termination of this Agreement (or any other time at the other party’s request), a party will return to the other party all copies of Confidential Information in tangible form. Despite any other provisions of this Agreement, the requirements of this section will survive termination of this Agreement.
5.3 Vault America disclaims all warranties with regard to its Products and services, including all express, implied, statutory or other warranties, and specifically disclaims all implied warranties of merchantability and fitness for a particular purpose.
5.4. Neither party shall be liable to the other party for any special, consequential, incidental, indirect, tort or cover damages, including, without limitation, damages resulting from the use or inability to use its products or services or for delay of delivery and implementation, or loss of profits, data, business or goodwill, whether or not such party has been advised or is aware of the possibility of such damages. Except for damages related to breach of Section 5.2 (Confidentiality) or for Company’s indemnification obligations, liability for all claims of any kind arising out of or relating to this Agreement shall not exceed the amount of Fees paid to Company during the twelve months prior to the claim..
5.5 Entire Agreement. This Agreement constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or understandings, inducements or conditions, express or implied, written or oral, between the parties with respect hereto.
5.6 Amendment and Waivers. Any term or provision of this Agreement may be amended, and the observance of any term of this Agreement may be waived only by a writing signed by the party to be bound thereby. The waiver by a party of any breach of this Agreement or default in the performance hereof shall not be deemed to constitute a waiver of any other default or succeeding breach or default. The failure of any party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions.
5.7 Attorneys’ Fees. Should suit or arbitration be brought to enforce or interpret any part of this Agreement, the prevailing party shall be entitled to recover, as an element of the costs of suit or arbitration and not as damages, reasonable attorneys’ fees to be fixed by the court (including without limitation, costs, expenses and fees on any appeal).
5.8 No Joint Venture. Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between the parties. Neither party is by virtue of this Agreement authorized as an agent, employee or legal representative of any other party. Neither party shall have the power to control the activities and operations of any other and their status is, and at all times will continue to be, that of independent contractors with respect to each other. Neither party shall have any power or authority to bind or commit any other. Neither party shall hold itself out as having any authority or relationship in contravention of this Section.
5.9 Assignment. Neither party may assign, delegate or otherwise transfer this Agreement or any of its rights or obligations without the other party’s prior approval; provided, however, that upon prior notice to Company, Vault America may assign this Agreement to another company in the event of a merger or acquisition. Any attempt to assign, delegate or otherwise transfer this Agreement in violation of this Section will be void. This Agreement shall be binding upon, and inure to the benefit of, the permitted successors and assigns of the parties.
5.10 Notices. Any notice, demand or request with respect to this Agreement shall be in writing and shall be effective on the date received (unless the notice specifies a later date) only if it is sent by a courier service that confirms delivery in writing, or sent by certified or registered mail, postage prepaid, return receipt requested to the appropriate party at its address set forth on page 1. Notice to Vault America shall be addressed to the “Legal Department.” Any party may change its address for such communications by giving notice thereof to the other party in conformity with this section.
5.11 Severability. If any provision of this Agreement shall be deemed invalid or unenforceable, this Agreement shall be amended to delete or modify, as necessary, the invalid or unenforceable provision to render the Agreement enforceable, and, insofar as possible, consistent with the original intent of the parties.
EXHIBIT A
VAULT AMERICA PRODUCTS & SERVICES
This agreement covers: All Products including
(1) Vault America Cloud Backup & Recovery – VaultProtect
(2) Vault America Email Archiving – VaultArchive
(3) Vault America File Sync, Share & File Server Cloud Enablement – CloudBox
EXHIBIT B
PARTNER REFERRAL FORM
For each Prospect, Company will submit a Partner Referral Form via a specific URL provided by Vault America. When registering the prospective Prospect Company will provide the following information.
Key Partner Contact
Vault America Partner Information
Name of Partner/ Parent Account*
Name of Sales Rep/ Partner Contact*
Phone*
Email*
Opportunity Overview
Deal Information
Company/ Account Name*
Opportunity Name*
Product of Interest*
Address, City, State/Province, Zip*
Country*
Primary Contact First/ Last Name*
Primary Contact Title*
Primary Contact Phone*
Primary Contact Email*
Estimated Monthly Revenue ($)*
Close Date*
Stage*
Close Probability (%)*
Estimated Revenue/ Amount ($)*
EXHIBIT C
FEES
FEES:
The Fee will be equal to ten percent (10%) of the Fees as that term is defined in Section 2 of the Agreement.
Fee modifications can be made to this Exhibit C based on written