Recitals.
1. Engrain is a software provider of map based data visualization solutions and other software and related services as 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 offer Engrain Services to Customers and receive referral compensation for referrals of paid contracts. The parties wish to enter into a Referral Agreement to establish the terms and conditions governing the referral of Engrain Services by the Partner.
3. 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. “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.
b. “Engrain Services” means, collectively, the services offered by Engrain eligible for referral by Partner, including the following products: (a) SightMap, (b) UnitMap, and (c) Marketing Maps. For avoidance of doubt, Engrain Services includes:
a. Unit Map and related program content associated therewith using the SightMap Products supplied by Engrain.
b. Unit Map and Application Programming Interface (API) supplied by Engrain.
c. Software Development Kit (SDK) tools and programming for the purpose of rendering Unit Maps on Partner’s website, software application, or application program.
d. Unit Map and related content associated therewith using the Marketing Map Products supplied by Engrain.
a. “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.
2. Purpose. This Agreement sets forth the terms and conditions pursuant to which Partner may refer prospective customers to Engrain in exchange for a fee as well as the scope of the parties’ collaboration.
3. Scope of Agreement. The parties acknowledge and agree that this Agreement shall not apply to any work or contracts that commenced prior to the date of this Agreement.
4. Existing Mutual Customers.
a. Existing Customer Accounts. The Parties acknowledge that certain Customers ("Existing Customer Accounts") have entered into direct agreements with Engrain prior to the execution of this Agreement and that these Customers may also be Customers of Partner.
b. Referral Rights for Existing Customer Accounts. Partner shall have the right to submit referrals for Existing Customer Accounts, subject to the following:
a. Mutual Agreement. Engrain and Partner shall mutually agree, in writing, that the Existing Customer Account is eligible for referrals, considering factors such as existing contract terms and account penetration.
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. Partner is permitted to promote the Engrain Services on its website and through marketing and advertising channels but may not use the “Engrain” or “SightMap,” or "Unit Map" name in any paid search engine advertising. Partner may not represent the SightMap, or Unit Map product by any other name or as a “white labeled” product.
6. Referrals and Referral Fees.
a. Identifying Potential Customers. Partner may identify Customers and Potential Customers who might benefit from Engrain's services.
b. Referral Process. To qualify for a referral fee, Partner must direct Customers and Prospective Customers to contract products with Engrain through Engrain's E-Commerce platform (https://manage.engrain.com/). Orders must be submitted with Partner's unique referral code ("Code") in order for the Partner to be eligible for referral compensation. 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 Compensation. During the term of this Agreement, Engrain shall pay Partner a percentage based fee ("Referral Fee") of any implementation and prepaid license fees billed and paid in the initial contract for each new SightMap contract referred by Partner (“Referred Customer”).
8. Referral Payments. Within 60 days following the end of each calendar quarter during the term of this Agreement, Engrain shall submit reasonable documentation to Partner that will include, the name of each Referred Customer that signed an initial contract during the relevant quarter, the total amount of the fees invoiced for each such Referred Customer, the amount to be paid to Partner under this Agreement and the status of Referred Customer’s payment for each Referred Customer (the “Quarterly Payment Report”). To be considered an eligible opportunity during a quarter for which Engrain will pay Partner, a Referral Customer must sign a contract with Engrain during such quarter and remit payment. Referral Fees are paid to Partner via ACH remittance.
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 End Users (including Partner’s 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 and will renew annually on the Effective Date, unless earlier terminated by either Party with thirty (30) days written notice. This agreement may be terminated for material breach or by thirty (30) day written notice of termination by either party. No Referral Fees shall be paid with respect to Referred Customers contracted 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, the Company’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.
14. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, 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. COMPANY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR BE 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 and the corresponding orders constitute the entire Agreement between the parties, and supersede 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.
d. Publicity. Partner agrees to act as a reference account that will, upon Engrain’s reasonable request, provide Service-related comments to the press, potential investors, and current or prospective customers and participate in Service-related case studies. Partner agrees to issue joint press releases with Engrain regarding the Service, as approved by Engrain. Partner agrees to allow Engrain to use its name, logo and non-competitive use details in both text and pictures in its various marketing communications and materials, in accordance with Partner’s trademark guidelines and policies.
e. No Assignment. Partner may not assign or transfer this Agreement or an order to a third party, except that this Agreement with all orders may be assigned as part of a merger, or sale of all or substantially all of the business or assets, of a party.
f. Independent Contractors. The Parties are independent contractors with respect to each other.
g. Enforceability. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
h. No Additional Terms. Engrain rejects additional or conflicting terms of any Partner form-purchasing document.
i. Order of Precedence. If there is an inconsistency between this Agreement and a subsequent order, this Agreement prevails.
j. Survival of Terms. Any terms that by their nature survive termination or expiration of this Agreement, will survive (including, but not limited to, Sections 8, 9, 10 and 12).
k. Notices. Notices and other communications to Partner will be emailed to the email addresses provided during Partner registration and shall be deemed effective upon email distribution. Notice or other communications to Engrain shall be sent by email to contracts@engrain.com and shall be deemed effective once acknowledged.
l. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, terrorism, or any other event beyond the control of such party.
m. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. The parties agree to be bound by facsimiled and other forms of electronic signatures.
Exhibit A "Fees"
1. DEFINITIONS. Unless otherwise defined in this Exhibit A, defined terms shall have the meanings given to them in the Agreement.
a. "Standard Rate Card" means Engrain's current standard, current rate cards.
2. FEES. Referrer will receive volume-based referral fees based on Engrain’s Standard Rate Card Fees for SightMap as specified below.
3. FEE CHANGES. If Engrain’s Standard Rate Card Fees are changed, the Referral Fees will be reasonably adjusted.
SightMap Volume Referral Fees
% Referral Fee (per all time order count)
Less than 20: 10% Referral Fee
21-50: 15% Referral Fee
51-250: 20% Referral Fee
251-500: 25% Referral Fee