Terms and Conditions

 

REFERRAL AGREEMENT

This Referral Agreement (“Agreement”) is made and effective as of the date of electronic acceptance of this agreement (“Effective Date”) by and between Ignite Enterprise Software Solutions LLC (“Company”), with its principal address at 2028 E. Ben White Blvd., Ste 240-2650, Austin, TX 78741 and the party accepting this Agreement electronically (“Referral Partner”).

PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CLICKING THE "I ACCEPT" BUTTON BELOW. BY CLICKING "I ACCEPT" OR ACCESSING OR USING THE REFERRAL PARTNER PORTAL, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE "I DECLINE" BUTTON AND YOU WILL NOT BE AUTHORIZED TO ACCESS OR USE THE REFERRAL PARTNER PORTAL. BY CLICKING “I ACCEPT” YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE REFERRAL PARNTER AND TO BIND REFERRAL PARTNER TO THE TERMS OF THIS AGREEMENT.

The parties agree as follows:

1.  Appointment. Company hereby appoints Referral Partner, and Referral Partner hereby accepts appointment, as its non-exclusive referral partner for the referral of Opportunity (defined in Section 4 below) to Company for the benefit of Company. Referral Partner will assume and pay all costs Referral Partner incurs in connection with performance of Referral Partner’s obligations under this Agreement. This Agreement shall apply to the referral of Company’s product set forth on Exhibit A (the “Product” or “Products”). The parties may agree to add other products in a separate mutually executed addendum to this Agreement.
    
2. Referral Partner Obligations. Referral Partner will:

   Use commercially reasonable efforts to market the Products (as defined in Section 1), respond to inquiries and solicit orders for the Products;

   (b) Conduct its business activities in a way that reflects favorably on Company and Company’s goodwill and reputation at all times;

   (c) Avoid deceptive, misleading or unethical practices and will not make false or misleading representations about Company or the Products;

   (d) Register prospective Opportunities in accordance with the provisions of Section 4;

   (e) Promptly transmit to Company any prospective order, inquiry or complaint concerning the Products;

   (f) Obtain and maintain any required permits, licenses and government registrations and make all filings with governmental authorities if required by applicable law;

   (g) Comply with all applicable laws and regulations in performing its obligations under this Agreement;

   (h) Pay its personnel as well as all taxes, insurance and benefits that may be due to such third- parties in connection with Referral Partner’ s obligations under this Agreement; and

   (i) Pay its personnel as well as all taxes, insurance and benefits that may be due to such third- parties in connection with Referral Partner’s obligations under this Agreement.

3. Non-Circumvention. During the Term of this Agreement and for two (2) years thereafter, Referral Partner shall not:

               (a) Enter into any transaction with an Opportunity, directly or indirectly, similar to, in competition with, or which otherwise could have the effect of preventing the Company from receiving the full benefit of the transactions set forth herein (“Prohibited Transaction”);

               (b) Establish or solicit an Opportunity to enter into any such Prohibited Transaction;

               (c) Induce, solicit, procure, or otherwise encourage its representatives or any third party to respond to any solicitation from an Opportunity to enter into any such Prohibited Transaction;

               (d) Dissuade or attempt to dissuade any Opportunity or Customer (as defined herein) from using any Product or diminish the value of such Product for the Opportunity or Customer and shall at all times, promote Company and its business’ goodwill; or

               (e) Persuade the Customer to terminate their contract with Company or encouraging the Customer to move to another vendor or supplier.

4. Non-Solicitation.

                (a) During the term this Agreement is in effect and for a period of two (2) years thereafter, Referral Partner agrees not to directly or indirectly, individually or on behalf of any other person, firm, partnership, corporation or business entity of any type, solicit or in any way encourage any current employee or consultant of Company or any Company affiliate to terminate their employment relationship or consulting relationship with Company or any Company affiliate or otherwise solicit or hire such employee or consultant, or work with any other direct competitor of Company which the specified employees or consultants joined or founded.  This clause will be applicable to all those, whose employment or consulting agreement has been terminated for less than six (6) months.

                (b) During the term of this Agreement and for a period of two (2) years following termination Referral Partner agrees that Referral Partner will not call on, solicit, attempt to call on, solicit, or take away, or assist any third party to call on, solicit, or take away any of the customers of Company.

5. Registration and Acceptance of Opportunities.

                (a) Referral Partner will register with Company all the necessary information of a prospective customer who has an intent to buy or desire to learn more about the Product. Such registration shall be made via letting the customers register using a Promocode shared with the referral partner. Each prospective customer so registered shall be hereinafter referred to as an “Opportunity”. As a part of the registration process, Referral Partner will provide all necessary information about the Opportunity to Company such as the full name and address and point of contact’s designation, contact number, email and office address, and such other information as Company may request from time to time in a format acceptable to Company.

                (b)  Opportunities are subject to acceptance or rejection by Company, at Company’s sole discretion. Referral Partner shall exclusively submit the Opportunity to Company and shall not submit the same Opportunity, whether directly or indirectly, to any other third party for any purpose, whatsoever. By way of example and not limitation, Company may reject an Opportunity if: (i) Company is already in contact with such Opportunity, (ii) the Opportunity is already a customer of Company, (iii) the Opportunity is not bona fide, or is duplicative, or does not contain complete information or its submission has been delayed, (iv) the Opportunity was induced by any misrepresentation or other offer of compensation or potential reward, and have been proposed Product/s not based on product, specifications, services or the price proposition provided by Company, (v) the Opportunity has not been converted into a Customer within three (3) months from the date of registration of the Opportunity. Company is not liable to pay any Commission (as defined herein) or any other amounts to Referral Partner for any rejected Opportunity.

                (c) If an Opportunity is accepted by the Company in accordance with Section 5(b), Company shall then pursue converting said Opportunity into a Customer by execution of a Customer Contract (defined below). Referral Partner shall have no duty and will, in no instance, negotiate the terms of the relationship between Company and the Opportunity, unless requested to do so by Company in writing. For purpose of this Agreement, “Customer” shall mean an Opportunity that is successfully converted into a Company customer pursuant to this Agreement by way of a Customer Contract between such Opportunity and Company. “Customer Contract” shall mean a commercial definitive agreement that is entered into between an Opportunity and Company pursuant to this Agreement. Nothing in this Agreement shall obligate Company from entering into any Customer Contract upon terms and conditions not acceptable to Company, in its sole discretion.

6. Commissions. For each Customer Contract entered into with an Opportunity, from which Company receives revenue, Company will pay Referral Partner a fee as set forth on Exhibit A attached hereto (“Commission”). Commissions are payable within forty five (45) days from the date of invoice to the customers and the payment of the invoice by the customer using their credit card on the platform.

7. Marketing Materials. Company may provide Referral Partner marketing materials to enable Referral Partner to promote the Company Products to Opportunities. Company retains all right, title and interest in and to its marketing materials.

8. Trademarks and other Intellectual Property. During the Term of this Agreement, Company grants to Referral Partner, and Referral Partner grants to Company, a limited, revocable, non-exclusive, royalty-free license to use the other party’s name and logo as provided by each party to the other party (the "Marks") for the sole purpose of promoting their relationship and fulfilling their responsibilities under this Agreement. Referral Partner shall not modify, sublicense, or create new marks arising from or relating to Company’s Marks or remove, modify, or obscure any proprietary notices from Company’s intellectual property. Except for the limited right to use the Marks as set forth in this Section 7, nothing contained in the Agreement shall be construed to grant to Referral Partner any right, title or interest in or to any Marks or any other intellectual property of Company, and any unauthorized use of the Marks or other Company intellectual property by Referral Partner shall be deemed a misappropriation of such Marks and/or intellectual property.

9. Representations and Warranties.

                (a) The parties represent and warrant that:

                     (i) they have the right and authority to enter into this Agreement and to perform their obligations under it without the need to obtain any additional consents or approvals from any third party; and

                    (ii)    the parties represent and warrant that the performance of their obligations under this Agreement will not breach or be in conflict with any other agreement to which that party is bound.

                (b) Referral Partner represents and warrants that:

                     (i) it shall provide all services as a Referral Partner to Company in a professional and workmanlike manner;

                     (ii) its content, materials, activities or services hereunder will not infringe on any copyright, trademark, patent or any other third party proprietary rights or any other rights;

                     (iii) it has provided notice to and obtained the consent of each Opportunity to provide such Opportunity’s information to Company, and that all Opportunities obtained, stored, or submitted by Referral Partner in the performance of this Agreement, will be done so in accordance with all applicable laws, including but not limited to the telemarketing laws, privacy laws, anti-bribery and anticorruption laws, and that the Referral Partner or its representatives will not violate any applicable law or regulation;

                     (iv) it will not represent to an Opportunity that it will receive, or potentially receive, any form of compensation, special benefit or other valuable consideration in exchange for submitting information to Referral Partner or to Company, unless with Company’s written consent;

                     (v) it is an independent contractor and does not have the authority to bind Company in any manner or to make representations, guarantees or warranties to others, who are not a party to this Agreement which shall be binding upon Company; and

                     (vi) it shall not make any statements to the Opportunities or Customers that are misleading, unethical, denigrating, criticizing, disparaging about or adverse to the business interests of Company or are intended to harm the reputation of or replace or diminish Company’s business, including, but not limited to, any statements that disparage any of Company’s service, product, or finances, officers, resources, capability, or goodwill or any other aspect of Company’s business.

10. Warranty Disclaimer: REFERRAL PARTNER ACKNOWLEDGES THAT THE PRODUCTS ARE PROVIDED TO CUSTOMERS ON AN “AS IS” AND “AS AVAILABLE” BASIS AND COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, AND NON- INFRINGEMENT OF THIRD-PARTY RIGHTS. REFERRAL PARTNER ACKNOWLEDGES IT HAS NOT RELIED ON WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE PRODUCTS WHEN ENTERING INTO THIS AGREEMENT.

11. Indemnity. Referral Partner hereby indemnifies, defends and holds harmless the Company, its officers, directors, shareholders, employees, representatives, consultants, customers, affiliates, successors, assigns and agents (each an “Indemnitee”) against all damages, claims, liabilities, losses and other expenses, including without limitation reasonable attorneys’ fees and costs, whether or not a lawsuit or other proceeding is filed, that arise out of or relate to: (i) Referral Partner’s breach of this Agreement; (ii) Referral Partner’s gross negligence or willful misconduct, (iii) any misrepresentation made by Referral Partner to an Opportunity or Customer regarding the Product or its capabilities; and/or (iv) the misappropriation of Company’s intellectual property or trade secrets by Referral Partner. Indemnitee shall use best efforts to notify the Referral Partner promptly in writing of such action and will give the Referral Partner sole control of the defense thereof and any related settlement negotiations. Company shall cooperate with Referral Partner and, at the Referral Partner’s reasonable request and expense, Company may assist in such defense. In the event the Referral Partner fails to promptly indemnify and defend such claims and/or pay Indemnitee’s expenses, as provided  above, such Indemnitee shall have the right to defend itself, and in that case, the Referral Partner shall reimburse such Indemnitee for all of its reasonable attorneys’ fees, costs and damages incurred in settling or defending such claims within thirty (30) days of such Indemnitee’s written requests.

12. Limitation of Liability.

                (a) IN NO EVENT WILL COMPANY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE, ATTORNEYS FEES AND COSTS), OR OTHERWISE, FOR DAMAGES WHICH, IN THE AGGREGATE, EXCEED THE COMMISSIONS PAID HEREUNDER TO REFERRAL PARTNER IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM .

                (b) IN NO EVENT WILL COMPANY BE LIABLE UNDER ANY THEORY OF LIABILITY, WHETHER IN AN EQUITABLE, LEGAL, OR COMMON LAW ACTION ARISING HEREUNDER FOR CONTRACT, STRICT LIABILITY, INDEMNITY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND AND HOWEVER CAUSED INCLUDING, BUT NOT LIMITED TO, ATTORNEY'S FEES AND COSTS, BUSINESS INTERRUPTION OR LOSS OF PROFITS, BUSINESS OPPORTUNITIES, OR GOODWILL ARISING HEREUNDER.

                (c) THE LIMITATIONS OF LIABILITY SET FORTH ABOVE APPLY EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

13. Confidentiality and non-solicitation.

                (a) Each party (the "Disclosing Party") may from time to time during the Term of this Agreement disclose to the other party (the "Receiving Party") certain Confidential Information, as defined below. The Receiving Party shall not disclose the Confidential Information of the Disclosing Party and shall protect the Confidential Information using the same degree of care which the Receiving Party ordinarily uses with respect to its own Confidential Information, but in no event with less than reasonable care during the Term of the Agreement and for a period of ten (10) years after its termination. The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees, consultants, or agents of the Receiving Party who have a need to know such Confidential Information and who are, with respect to the Confidential Information of the Disclosing Party bound in writing by confidentiality terms no less restrictive than those contained herein.

                (b) "Confidential Information" means any non-public or proprietary information of the Disclosing Party disclosed to or received by the Receiving Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, whether or not marked as confidential, including but not limited to product information, product plans, research, development or know-how, personnel, copyrightable material, trademarkable material, patentable material, marketing materials, client lists, trade secrets and the terms of this Agreement. Confidential Information may also include the information of a third party disclosed to the Disclosing Party under an obligation of confidentiality, such as the information of Opportunities and/ or Customers disclosed to Referral Partner. Confidential Information does not include any information which the Receiving Party can establish: (i) was in the public domain prior to the time of disclosure to the Receiving Party by the Disclosing Party; (ii) becomes publicly known after disclosure to the Receiving Party through no action or inaction of Receiving Party; (iii) is in the possession of the Receiving Party, without confidentiality restrictions, at the time of disclosure to the Receiving Party by the Disclosing Party as shown by Receiving Party's files and records immediately prior to the time of disclosure; or (iv) is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided, however, that the Receiving Party shall provide prompt notice thereof to the Disclosing Party and shall use its reasonable efforts to obtain a protective order or otherwise prevent public disclosure of such information.

                (c) Upon termination or expiration of this Agreement, each Party shall promptly deliver to the disclosing Party any and all documents, notes, or other physical embodiments of or reflecting the Confidential Information (including copies thereof) that are in its possession or control.

                (d) Unless otherwise agreed by Company in writing, Referral Partner shall not perform any competitive work that would utilize Company Confidential Information, technology that infringes Company intellectual property, or would involve an inevitable disclosure of Company trade secrets and/or Company Confidential Information.

14. Term and Termination.

                (a) Probation Period. This Agreement is effective on the Effective Date and shall continue for a probation period of ninety (90) days (“Probation Period”). At the end of the Probation Period, Company has the option in its sole discretion to terminate this Agreement or allow it to remain in effect for the balance of the Initial Term (defined below). Company will give notice to Referral Partner of its decision within five (5) business days of the expiration of the Probation Period.

                (b) Term. This Agreement will continue for a term of one (1) year from the Effective Date, unless earlier terminated after the Probation Period or otherwise in accordance with this Agreement (“Initial Term”). At the end of the Initial Term, the Agreement will automatically renew for subsequent one-year terms until it is terminated in accordance with Section 14(b) (“Renewal Term”). Each Initial Term and Renew Term shall be collectively hereinafter referred to as the “Term” of this Agreement.

                (c) Termination. Either party may terminate this Agreement for convenience upon thirty (30) days prior written notice. This Agreement may be terminated immediately upon written notice by either party if the other party: (i) becomes insolvent; (ii) makes an assignment for the benefit of creditors; (iii) files or has filed against it a petition in bankruptcy or seeking reorganization; (iv) has a receiver appointed; or (v) institutes any proceedings for liquidation or winding up.

                (c) Upon Termination. Upon termination of this Agreement for any reason, Referral Partner will immediately cease representing itself as a Referral Partner of Company, and will: (i) cease marketing the Products; (ii) cease using the Products and any other Confidential Information or intellectual property of Company, including the Marks; and (iii) discontinue use of and immediately return to Company, or destroy upon Company’s request, all materials provided by Company relating to the Products (including all marketing and educational materials) and all of Company’s Confidential Information. Notwithstanding the termination of this Agreement, Referral Partner shall receive Commissions for all Products sold to Opportunities in executed Customer Contracts prior to or after termination.

14. Press Releases. Neither party will originate any press release or other announcement concerning the relationship between the parties or the transactions described in this Agreement without the prior written consent of the other party. Referral Partner acknowledges that any use of Company’s trademarks and logos will be fully compliant with Company’s policies regarding such use, as communicated to Referral Partner, in writing.

15. Relationship of the Parties. Referral Partner is not an employee or agent of Company. The parties are independent contractors as to each other. Referral Partner does not have, nor will hold itself out as having, any right, power, or authority to create any contract or obligation, either express or implied, on behalf of, in the name of, or binding upon Company, or to pledge Company’s credit, or to extend credit in Company’s name or to collect any account of Company, or otherwise.

16. Applicable Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Texas, without regard to conflict/choice of law principles. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Austin, Texas, and the parties hereby irrevocably consent to the personal jurisdiction and venue therein.

17. Injunctive Relief. The parties acknowledge and agree that the parties would suffer immediate and irreparable harm and that monetary damages would be inadequate if a party violated or threatened to violate the sections of the Agreement related to Confidential Information and non-solicitation and the parties’ respective intellectual property. In any such instance, the affected party will be entitled to injunctive relief in addition to any other remedies that may be available by law, without the requirement of first posting a bond.

18. Assignment. Neither party shall assign this Agreement without the prior written consent of the non-assigning party. Notwithstanding the foregoing, either party may assign this Agreement without consent in the case of a merger, reorganization, acquisition, consolidation, or sale of all, or substantially all, of such party’s assets; provided however, that Referral Partner will not assign to any entity that is a direct or indirect competitor of the Company without Company’s prior written consent, which may be withheld in Company’s sole discretion. Subject to the foregoing, this Agreement will be  binding upon and will inure to  the benefit of the parties, their respective heirs, legal representatives, beneficiaries, successors, and permitted assigns.

19. Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any one or more of the provisions hereof will not affect the validity and enforceability of the other provisions hereof.

20. Notices. Any notice under this Agreement will be in writing and delivered by personal delivery, express courier, confirmed facsimile, confirmed e-mail, or certified or registered mail, postage prepaid and return receipt requested. Notices will be deemed to be effective upon personal delivery, one (1) day after deposit with express courier, five (5) days after deposit in the mail, or upon confirmation of receipt of facsimile or e-mail. Notices will be sent to the addresses below:

                       To    Company: Ignite Enterprise Software Solutions LLC

                                                    2028 E. Ben White Blvd. Ste. 240-2650

                                                    Austin, TX 78741

                                                    Attn: Contracts Manager

                

                        To Referral Partner: On the Email provided at the time of Registration
 

21. Entire Agreement Amendment; Waiver. This Agreement together with any exhibits, addendum or amendments thereto is the entire agreement between the parties with respect to its subject matter and supersedes any prior or contemporaneous agreements, negotiations and communications (whether written or oral) regarding such subject matter. This Agreement may only be amended by a written document executed by the parties. No waiver shall be binding unless executed in writing by the party making the waiver.

22. Counterparts. This Agreement may be executed in counterparts and by facsimile or .pdf attached to email, all of which shall constitute an original and one and the same instrument with the same force and effect as though each of the parties had executed the same document.

 

Exhibit A
 

TERRITORY AND LICENSE FEE

 

              I.  Territory: Worldwide

              II.             Software: Eloquens.ai , Eloquens

              ​​​​​​​III.          License Fee:For purposes of this Exhibit A, “License Fee” shall mean the net amount in U.S. Dollars for the Software quoted by Company to End User.

              ​​​​​​​IV.           Commission:

 

              a) Standard Margin: The Reseller shall be entitled to a standard commission of 20% on all License Fees processed through the Company’s website as a result of reseller’s sales efforts, provided that the Reseller’s unique identifier was used by the customer in placing the order.

              b) Modification of Commissions: The Company reserves the right to modify the commission rates and structure set forth in this Appendix A upon no less than 30 days’ prior written notice to the Reseller. The revised commission rates shall apply to all commission payments made to the Reseller related to End user subscription that commence after the effective date of the commission change, regardless of when the initial transaction occurred using the reseller’s discount code.

For example, if the Company provides the Reseller with 30 days' notice of a commission rate change effective on April 1st, any commission payments made to the Reseller for an End-user subscription renewing on or after April 1st would be subject to the new rates, even if the initial transaction occurred prior to April 1^st.