Non-Exclusive Affiliate Agreement Terms

Affiliate Program Enrollment Form

What you get

• A non-exclusive right to refer Engrain Services to your customers and prospective customers
• Referral Fee of 15% of eligible fees on New SightMap contracts and Map Upgrades, paid quarterly
• Customers you refer get a free month of SightMap: they pay for 12 months and receive 13
• Marketing materials and support from Engrain
• The right to use Engrain's trademarks and logos in certain ways

What you agree to do

• Market and promote Engrain Services
• Submit referrals via Engrain's referral process
• Keep Engrain's confidential information confidential
• Use Engrain Services only as permitted, and not for any illegal or harmful purposes
• Not attempt to copy or reverse engineer the Engrain Services

What happens if something goes wrong

• Either party can terminate the agreement at any time with 30 days’ written notice, or if the other party materially breaches the agreement

Key terms

• Confidential Information: any information that is not publicly known and that is marked as confidential
• Referred Customer: a customer of yours who, via your referral, signs a new contract with Engrain for Engrain Services
• Engrain Services: the Engrain products eligible for referral including SightMap, Unit Map, and Map Background

Legal

This is a simplified version of the agreement. If you have any questions about the Non-Exclusive Affiliate Agreement Terms you should contact Engrain before digitally acknowledging.

* This Enrollment Form includes by reference the Non-Exclusive Affiliate Agreement Terms, available at https://www.engrain.com/non-exclusive-referral-agreement , and establishes the terms and conditions applicable to the relationship between Engrain, Inc. (“Engrain”) and you (“Partner”) created hereunder. By clicking "I Agree," you acknowledge and agree to the terms of this Enrollment Form, including referenced terms, and agree to be bound by them.

Part 2: Agreement Terms

Non-Exclusive Affiliate Agreement Terms

Recitals.

1. Engrain is a software provider of map based data visualization solutions and other software and related services, including the Engrain Services defined in Section 1.b ("Engrain Services"). Partner is a business that would like to refer Engrain Services to Customers.

2. Partner and Engrain are interested in consummating a relationship in which Partner will refer Customers to Engrain for Engrain Services and receive referral compensation for referrals of paid contracts. The parties wish to enter into this Agreement to establish the terms and conditions governing the referral of Engrain Services by Partner.

In consideration of the mutual covenants and agreements contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Definitions. For purposes of this Agreement, the following terms shall have the meanings set forth:

a. “Client Credit” has the meaning given in Section 7.d.

b. “Code” means the unique referral code Engrain assigns to Partner, which is connected to Partner’s affiliate link and co-branded landing page and automatically attributes orders placed through them to Partner.

c. "Customer" or "Prospective Customer" means a customer or prospective customer of Partner. For avoidance of doubt, a customer is the primary user of any referred Engrain Services.

d. “Effective Date” means the date Partner accepts this Agreement by clicking “I Agree” on the Affiliate Program Enrollment Form.

e. “Engrain” means Engrain Technology Inc.

f. "Engrain Services " means, collectively, the services offered by Engrain eligible for referral by Partner, including the following products: (a) SightMap, (b) Unit Map, and (c) Map Background. For avoidance of doubt, Engrain Services includes:

(i) Unit Map and related program content associated therewith using the SightMap Products supplied by Engrain.

(ii) Unit Map and Application Programming Interface (API) supplied by Engrain.

(iii) Software Development Kit (SDK) tools and programming for the purpose of rendering Unit Maps on Partner's website, software application, or application program.

(iv) Unit Map and related content associated therewith using the Map Background Products supplied by Engrain.

g. "Engrain Technology" means, collectively, the: (a) Engrain Services; (b) Engrain APIs; and (c) any Technology owned or controlled by Engrain or its Affiliates that is used by Engrain to provide or otherwise make the Engrain Services available.

h. "Existing Customer Account" means a Customer that has entered into a direct agreement with Engrain before Partner submits a referral for it.

i. "Map Upgrade" means an upgrade to an existing SightMap, including an upgrade by an Existing Customer Account under Section 4.b, ordered through Partner's affiliate link or co-branded landing page.

j. "Partner" means the person or entity that accepts this Agreement through the Affiliate Program Enrollment Form.

k. "Referral Fee" has the meaning given in Section 7.

l. "Referred Customer" means a Customer that enters into a new SightMap contract with Engrain through Partner's affiliate link or co-branded landing page.

2. Purpose. This Agreement sets forth the terms and conditions pursuant to which Partner may refer Customers and Prospective Customers to Engrain in exchange for Referral Fees as well as the scope of the parties' collaboration.

3. Scope of Agreement. This Agreement applies only to Referred Customer contracts signed, and Map Upgrades ordered, on or after the Effective Date. It does not apply to any contract or order signed before the Effective Date .

4. Existing Mutual Customers.

a. Existing Customer Accounts. The Parties acknowledge that some Existing Customer Accounts may also be customers of Partner.

b. Referral Rights for Existing Customer Accounts. Partner shall have the right to submit referrals for Map Upgrades for Existing Customer Accounts, except for accounts on the list of portfolio clients maintained by Engrain and published in Engrain's partner portal, as may be updated from time to time ("Engrain SightMap Portfolio Users List"). No Referral Fee or Client Credit is available for orders from accounts on the Engrain SightMap Portfolio Users List.

c. End User Messaging. The Parties agree to collaborate on a transparent and mutually agreeable communication strategy for informing Existing Customer Accounts about the Partner's role and ability to refer when applicable.

5. Marketing and Use Restrictions. Partner is permitted to promote the Engrain Services on its website and through marketing and advertising channels but may not use the "Engrain," "SightMap," or "Unit Map" names in any paid search engine advertising. Partner may not represent the SightMap or Unit Map products by any other name or as "white labeled" products.

6. Referrals and Referral Fees.

a. Identifying Prospective Customers. Partner may identify Customers and Prospective Customers who might benefit from the Engrain Services.

b. Referral Process. To qualify for a Referral Fee, Partner must direct Customers and Prospective Customers to place an order through Partner's unique affiliate link or co-branded landing page so that it is attributed to Partner through Partner’s Code. Codes cannot be applied to orders retroactively. Engrain's referral workflow will track qualified referrals.

c. Existing Relationships. Partner acknowledges that Engrain may have existing relationships or independently solicit customers on terms potentially different from those offered by Partner.

7. Referral Fees and Client Credit. During the term of this Agreement Engrain shall pay Partner fifteen percent (15%) of the following fees, to the extent billed to and paid by the Customer, for orders placed through Partner’s affiliate link or co-branded landing page under Section 6.b (each such payment, a “Referral Fee”):

a. New SightMap Contracts. For each Referred Customer’s new SightMap contract:

(i) one-time setup fees;

(ii) one-time map background and routing fees; and

(iii) the first twelve (12) months of license fees billed under the contract.

b. Map Upgrades. For each Map Upgrade: one-time map background and routing upgrade fees.

c. Excluded Fees. On-site survey fees are not eligible for a Referral Fee. Taxes and fees for products other than SightMap are also not eligible.

d. Client Credit. Each Referred Customer's initial SightMap contract will provide thirteen (13) months of SightMap license for the price of twelve (12): the Referred Customer pays license fees for twelve (12) months and receives the thirteenth (13th) month at no charge (the "Client Credit"). The Client Credit does not apply to Map Upgrades. No Referral Fee is payable on the free month, because no license fee is billed or paid for it.

e. Referral Fee; Timing. Referral Fees are available only for Referred Customer contracts signed, and Map Upgrades ordered, before this Agreement terminates.

8. Reporting and Payment. Engrain will calculate, report, and pay Referral Fees to Partner quarterly, as described in this Section 8.

a. When Referral Fees Are Earned. A Referral Fee is earned when Engrain receives payment of the underlying fees from the Customer. Engrain pays Referral Fees quarterly, for the calendar quarter in which it received that payment.

b. Monthly Billing. If a Referred Customer pays license fees monthly, Engrain will pay the Referral Fee each quarter on the license fees received in that quarter, until Referral Fees have been paid on the first twelve (12) months of license fees billed under the contract.

c. Quarterly Payment Report. Within sixty (60) days after the end of each calendar quarter, Engrain will provide Partner a report showing: (i) each Referred Customer and each Map Upgrade for which Engrain received payment; (ii) the fees invoiced to and received from each; and (iii) the Referral Fees owed to Partner.

d. Payment. Engrain will pay the Referral Fees due by ACH to the bank account Partner provides, within ten (10) days after it delivers the report.

9. Customer Relationships. Each party will: (i) enter into contractual agreements with their respective customers with such terms, conditions, and prices as such party determines, (ii) provide technical support and customer relationship support to their respective customers, and (iii) invoice and collect payments for its products and services from its customers directly.

10. Relationship of Parties. Partner acknowledges that its appointment under this Agreement is non-exclusive. Nothing in this Agreement shall limit in any manner Engrain’s right to advertise, promote, market, sell, or distribute the Engrain Technology (or any other products or services) to any person or entity (including Customers), or to appoint third parties to advertise, promote, market, sell, or distribute the Engrain Technology anywhere. The foregoing shall not require any compensation from Engrain to Partner. Further, Engrain reserves the right, in its sole discretion, at any time and from time to time, to modify any or all of the Engrain Technology. The relationship of Engrain and Partner established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (i) give either Party the power to direct and control the day-to-day activities of the other; (ii) deem the Parties to be acting as employer/employee, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking; or (iii) permit either Party or any of either Party's representatives to create or assume any obligation on behalf of the other Party for any purpose whatsoever, except as expressly set forth herein. Any and all Federal and State income taxes, FICA, Medicare and other taxes in connection with the Referral Fees paid to Partner are the sole responsibility of Partner. Engrain shall not make any tax or other withholdings and shall issue Partner an IRC 1099 form in connection with any Referral Fees paid.

11. Term and Termination. The initial term of this Agreement commences on the Effective Date, lasts one (1) year, and will renew automatically for successive one-year terms. Either party may terminate this Agreement at any time with thirty (30) days’ written notice, or for the other party’s material breach. No Referral Fees shall be paid for Referred Customer contracts signed, or Map Upgrades ordered, after the termination date of this Agreement.

12. Mutual Confidentiality.

a. Definition of Confidential Information. Confidential Information means all confidential information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information).

b. Protection of Confidential Information. The Recipient will protect the Confidential Information using the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but in no event less than reasonable care) unless otherwise provided herein. The Recipient shall not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this Agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this Agreement and who have signed confidentiality Agreements with Recipient no less restrictive than the confidentiality terms of this Agreement.

c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. Notwithstanding any of the foregoing, the Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.

13. EXCLUSION OF DAMAGES AND LIMITATION OF LIABILITY.

a. EXCLUSION OF CERTAIN DAMAGES. ENGRAIN AND ITS SUPPLIERS SHALL NOT BE LIABLE TO PARTNER FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE ENGRAIN’S SERVICES (INCLUDING, WITHOUT LIMITATION, INACCURACIES OF THE CUSTOMER CONTENT, INACCURACIES OF THIRD PARTY PRICING AND AVAILABILITY INFORMATION, COSTS OF DELAY, LOSS OF DATA, RECORDS OR INFORMATION, AND ANY FAILURE OF DELIVERY OF THE SERVICE), EVEN IF ENGRAIN HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.

b. Limitation of Liability. Under no circumstances will either party be liable to the other, whether in tort, contract, or otherwise, for indirect, incidental, consequential, special or exemplary damages (including but not limited to damages for any loss of revenue, profits, business interruption, loss of goodwill) arising from or related to this agreement or the partnership. Without limiting the foregoing, Engrain’s aggregate liability arising out of or related to this Agreement shall not exceed the total Referral Fees paid or payable to Partner under this Agreement in the twelve (12) months before the event giving rise to the claim.

14. WARRANTY DISCLAIMER. ENGRAIN DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. ENGRAIN DOES NOT WARRANT THAT THE ENGRAIN SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.

15. Governing Law and Forum. This Agreement is governed by the laws of the State of Colorado, without regard to conflict of law principles. Any dispute arising out of or related to this Agreement may only be brought in the state and federal courts for Denver, Colorado. Both parties consent to the personal jurisdiction of such courts and waive any claim that it is an inconvenient forum. Nothing in this Agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys' fees and costs from the other party. The Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

16. Miscellaneous Other Terms.

a. Money Damages Insufficient. Each party acknowledges and agrees that any threatened or actual breach by a party of this Agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party for which monetary damages would be an inadequate remedy. In such case, the other party may seek a court order, without the requirement of posting bond, to stop any breach or avoid any future breach.

b. Entire Agreement and Changes. This Agreement constitutes the entire Agreement between the parties, and supersedes all prior or contemporaneous negotiations, Agreements and representations, whether oral or written, related to this subject matter. No modification or waiver of any term of this Agreement is effective unless both parties sign it.

c. Independent Agreement. This Agreement is independent of and separate from any other agreement between the parties. The obligations of the parties under this agreement will not in any way be affected by the existence or performance of any other agreement in place between the parties from time to time.