MASTER REFERRAL AGREEMENT
PLEASE READ THIS MASTER REFERRAL AGREEMENT CAREFULLY. BY CLICKING ON THE “I AGREE” BUTTON, AND/OR EXECUTING AN ORDER FORM INCORPORATING THIS AGREEMENT, YOU ARE ACCEPTING THE TERMS AND CONDITIONS OF AND AGREEING TO BE BOUND BY THIS AGREEMENT.
The National Center for Social Impact (“NCSI”) and the partner (“Partner”) set forth on the order form (“Order Form”) submitted by Partner (each a “Party” and collectively the “Parties”) enter into this MASTER REFERRAL AGREEMENT, including all forms and exhibits incorporated herein by reference between the parties, (“Agreement”) for the Term. In consideration of the obligations, covenants, and agreements set forth below and other valuable consideration the sufficiency of which is hereby acknowledged, the Parties have entered into this Agreement effective as of the last date of signature in the initial Order Form signed by Partner hereunder (“Effective Date”).
1.1. “Commission” shall mean fifteen percent (15%) of the Net Annual Recurring Revenue (“Net ARR”) on a Qualified Contract, unless otherwise agreed upon in writing by NCSI and Partner.
1.2. “Confidential Information” shall mean certain non-public information of the Disclosing Party or of third parties that is designated as confidential or proprietary and that derives independent value from not being generally known to the public.
1.3. “NCSI Materials” shall mean business partner logos, marketing materials, technical materials regarding the Subscription, training materials, and other information of NCSI or of third parties including Confidential Information.
1.4. “Net ARR” shall mean the gross cumulative recurring revenue received from the sale of the Offerings to a Qualified Opportunity for the first year of the initial subscription period of a Qualified Contract as set forth on the initial order form with such Qualified Opportunity. For product sales, any amounts received for professional services, third party software or services, and/or taxes are excluded.
1.5. “Offerings” shall mean (as the case may be):
1.5.1. NCSI Offering – any and all services and products offered by NCSI for sale, lease, rent, and/or hire to the public; or
1.5.2. Partner Offering – any and all services and products offered by Partner for sale, lease, rent, and/or hire to the public.
1.6. “Partner Materials” shall mean business partner logos, marketing materials, technical materials, training materials, and other information of Partner or of third parties including Confidential Information.
1.7. “Qualified Contract” means any written agreement between Selling Party and a Qualified Opportunity that:
(i) relates to the subject matter of the Qualified Opportunity Form in which the Qualified Opportunity is named; and
(ii) is duly executed by Selling Party and the Qualified Opportunity within twelve (12) months after the date that Selling Party has approved the Qualified Opportunity, as set forth in Section 2.3 (ii) (Qualifications).
1.8. “Qualified Opportunity” means a prospective customer of Selling Party submitted to Selling Party through a Qualified Opportunity Form whereby all of the following criteria have been met:
(i) there is an identified need or requirement of the prospective customer (a “Need”) that Selling Party has the ability to meet;
(ii) the prospective customer has an executive sponsor for a project aimed at meeting the Need; and
(iii) one or more Mutual Referral Agreement conversations have taken place between Referring Party and the prospective customer regarding the Need.
1.9. “Qualified Opportunity” means a submission communicated by Referring Partner by email, document or other written communication containing information pertaining to the sale of Selling Party’s products and services.
1.10. “Referring Party” shall mean the party who submits a potential customer to Selling Party in order to qualify for Commission under this Agreement.
1.11. “Selling Party” shall mean the party to which a potential customer has been referred.
1.12. “Subscription” shall mean all members with accounts on the NCSI website, platform, NCSI Marketplace, and all subsidiary businesses, products and services, including updates, and services, and any associated intellectual property rights.
1.13. “Term” shall mean two (2) years from the Effective Date and an automatic renewal of an additional two (2) years at the end of each applicable two (2) year period, unless either party provides written notification to the other of their intent not to renew the Agreement thirty (30) days in advance of the completion of the applicable two (2) year period or the Agreement is otherwise terminated as provided herein or renewed by mutual agreement of the Parties.
1.14. “Territory” shall mean the world.
- REFERRAL RELATIONSHIP
2.1. Obligation. During the Term, Referring Party may market and promote Selling Party’s Offerings to potential customers, in the Territory, consistent with the terms hereof.
2.2. NCSI may, at its discretion and without prior approval from the Client offer discounts, promotions, and bundling of client products and services for sale to NCSI Marketplace without prior approval provided that the discount is taken from NCSI’s percentage of sale.
2.2. The Client may offer discounts and promotions to NCSI to be provided to NCSI marketplace customers. Such discounts will be taken from the client’s percentage of sale.
2.3. The Client and NCSI may mutually agree upon discounts and promotions with shared discounting that will be applied to the respective party’s percentage of sale. Such agreements will be agreed upon in writing.
2.4. Restrictions. At no time shall Referring Party:
(i) make any false or misleading representations with respect to Selling Party and/or its products or services;
(ii) make any representations with respect to Selling Party and/or its Offerings that are inconsistent with documentation supplied by Referring Party; or
(iii) make any other to a Qualified Opportunity or other party that would give rise, or could reasonably be expected to give rise, to any claim or cause of action against Selling Party.
2.5. Qualifications. Referring Party shall be eligible to receive a Commission from Selling Party when all of the following requirements are met:
(i) Referring Party completes a Qualified Opportunity Form regarding a prospective customer and submits it to Selling Party;
(ii) Selling Party approves or accepts in writing the prospective customer as Qualified Opportunity;
(iii) Referring Party introduces Selling Party to the appropriate contact at the Qualified Opportunity; and
(iv) Referring Party cooperates actively with Selling Party as needed and the Qualified Opportunity in subsequent meetings and discussions regarding the purchase.
2.6. Restrictions. Selling Party will not pursue a Qualified Opportunity for six (6) months after rejecting such Qualified Opportunity, unless the reason for the rejection is that Selling Party has already identified the Qualified Opportunity either directly or through another referral or reseller partner.
2.7. Grant of Rights. Referring Party is not granted any right under this Agreement or otherwise to view, inspect, possess, or know the contents of any Qualified Contract other than the amounts of fees to be charged under the Qualified Contract that relate to Referring Party’s Commission under this Agreement.
2.8. Reservation of Rights. Selling Party reserves the right to reject a Qualified Opportunity Form Mutual Referral Agreement in its sole discretion, and may be given for any reason or no reason at all.
2.9. Business Development. Should the Partner express the need and desire to obtain the services of NCSI or any NCSI subsidiaries for business development; and whereas, NCSI desires to perform said services detailed in 2. Services to Be Rendered and is able to do so in a professional manner; and whereas, Partner has selected NCSI to perform these services.
Now, therefore, in consideration of the mutual promises and covenants contained herein, the parties agree to engaging NCSI or its subsidiary organizations with assistance with business development including opportunity identification, client meetings, and proposal development. When new opportunities are identified, NCSI will notify Partner, who will approve the opportunity as qualified opportunity, for the opportunity to be eligible for Commission.
2.9.1. Compensation. Partner shall pay NCSI a “commission” on all sales in which NCSI played a substantial and valued role in assisting or in closing of sales. Approval of a designated Officer of Partner will be required before an opportunity can be identified to be eligible for “commission.” Compensation rates for NCSI business development shall be agreed upon by both parties in writing prior to NCSI engagement.
2.9.2. Payment Terms. For opportunities whereby the customer directly contracts with NCSI, NCSI will earn commission based on the revenue received by the Partner for products and service sales sold to such customer at the sale in which NCSI was involved. The commission will be for the total Partner contract value. NCSI will not receive a commission for the customer contract renewal unless agreed upon by NCSI and Partner.
Commission rates must be agreed upon in writing by both parties prior to NCSI engagement.
The Partner agrees to pay NCSI the appropriate total commission monthly, no more than 60 days after receipt from customers of initial and ongoing revenues received by the Partner from these customers.
2.9.3. Expenses. The Partner will pay associated travel expenses for those opportunities whereby NCSI is representing the Partner and approved by a designated Officer of the Partner. Travel expenses will be submitted by NCSI within 30 days, and travel and expenses will be reviewed and paid by the Partner within 30 days of submission.
2.9.4. NCSI may, at its option and in its sole and absolute discretion and without any liability to Contract,
(i) refuse to accept any or all business development work proposed by Partner for policy reasons or otherwise, and
(ii) grant such credits, rebates, refunds, allowances or incur such write-offs as the Partner may determine in its sole and absolute discretion.
2.9.5. Partner Obligations. The Partner shall provide NCSI, at no charge, all existing information, data, and documents, available and necessary for the carrying out of services under this agreement.
2.9.6. Non-Discrimination. NCSI and its subcontractors shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to firing, tenure, terms, conditions, or privileges of employment, or any matter directly or indirectly related to employment because of race, religion, color, sex, age, handicap, disability, national origin, ancestry, disabled veteran status, or Vietnam-era veteran status. Breach of this section shall constitute a material breach of this Agreement.
2.9.7. Conflict of Interest. NCSI certifies and warrants to the Partner that neither it nor any of its agents, representatives, or employees who will participate in performance of any services required by this Agreement have or will have any conflict of interest, directly or indirectly with the Partner.
- INTELLECTUAL PROPERTY
3.1. Confidential Information. Each Party acknowledges that during the performance of this Agreement it will have access to Confidential Information. Receiving Party agrees to maintain, and shall cause its users, employees, agents and subcontractors (as applicable) to maintain the confidentiality of the Confidential Information. Receiving Party shall take commercially reasonable security precautions, at least as great as the precautions it takes to protect its own confidential information, to protect Confidential Information. Information shall not include:
(i) information previously known to or independently developed by the receiving Party without reference to Confidential Information,
(ii) information which is or becomes publicly known through no act or omission of the receiving Party, or
(iii) information received from a third party under no confidentiality obligation with respect to the Confidential Information.
3.2. NCSI Materials. Subject to the terms and conditions contained in the Agreement, during the Term, NCSI hereby grants to Partner, and Partner hereby accepts, a personal, non- exclusive, non-transferable right and license to use the NCSI Materials solely to perform its obligations under the Agreement. Partner acknowledges that NCSI or its licensors own all rights, title, and interest to NCSI Materials. Partner acknowledges that this Agreement does not convey to Partner any right, license, title, or interest in or to the Subscription.
3.3. Partner Materials. Subject to the terms and conditions contained in the Agreement, during the Term, Partner hereby grants to NCSI, and NCSI hereby accepts, a personal, non-exclusive, non-transferable right and license to use the Partner Materials solely to perform its obligations under the Agreement. NCSI acknowledges that Partner or its licensors own all rights, title, and interest to Partner Materials. NCSI acknowledges that this Agreement does not convey to NCSI any right, license, title, or interest in or to the Partner Offerings.
3.4. Limited Use & Non-Disclosure. Receiving Party shall use the Confidential Information solely in connection with this Agreement. Receiving Party shall not disclose, directly or indirectly, any Confidential Information to third parties except to Receiving Party’s and its affiliates’ officers, directors, employees, consultants, and agents on a need-to-know basis, provided such parties have executed appropriate written agreements sufficient to enable it to comply with all the provisions of this Agreement. Receiving Party may also disclose Confidential Information in accordance with judicial or other governmental order, provided Receiving Party shall give Disclosing Party reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent.
3.5. Restrictions. Any rights not expressly granted by NCSI are reserved by NCSI, and all implied licenses are disclaimed. Partner shall not exceed the scope of the licenses granted. Partner shall not reverse engineer, decompile, translate, adapt or disassemble, or in any way attempt to reconstruct or discover any source code of any NCSI Materials by any means whatsoever. Partner shall not remove any proprietary trademark or copyright markings incorporated in, marked on or affixed to any NCSI Materials by NCSI or its licensors. Partner agrees to notify NCSI immediately of any unauthorized use of any NCSI Materials it becomes aware of.
3.6. Marketing. The Partner and NCSI agree to the ability to use the other’s marketing materials, logos, and collateral. Both parties may represent the other’s logo and relationship on their online properties including NCSI Marketplace, and must follow the other’s style guide for all branding for text and graphics relating to the other party’s content. Neither party may make any claims, representations, warranties, guarantees, or similar statements in any materials regarding the other’s Products and Services unless expressly authorized in writing.
The Partner and NCSI hereby grants the other and their affiliates and subsidiaries the non-transferable, non-assignable right to market and obtain orders to sell Company’s offering to their customers.
The Partner and NCSI hereby grant each other and their affiliates and subsidiaries for the Term of this Agreement, a worldwide, non_exclusive, non-transferable, limited, royalty_free license to use, copy, display, publish and disseminate the name, logo, servicemark, trademark and/or tradename (“Marks”) of the other party (“Company Marks”) and the marketing and advertising information relating to the other’s offering, but such license shall be solely for the purpose of marketing, selling, advertising and promoting other party and fulfilling obligations under this Agreement.
Use of the Company Marks and all marketing and promotional materials of each party referencing the other, and each other’s solutions, are subject to the prior written approval of the other party which shall not be unreasonably withheld or delayed. All rights in the Company Marks not specifically granted to the other hereunder are retained by the owner. The Client and Contractor retain the right to terminate this limited license at any time if either party
(i) fails to comply with the other party’s brand guidelines or requirements of this Agreement or
(ii) fails to obtain the other party’s approval as required hereunder.
The Client and Contractor may market the other’s offerings through whatever marketing medium it deems reasonably appropriate including, but not limited to, direct sales force, marketing campaigns, promotional materials and web sites.
- PAYMENT TERMS
4.1. Opportunity Fee & Commission. Provided that Partner has fully complied with Section 2.5. (Qualifications) above, NCSI agrees to pay Referring Party the Commissions on Net ARR from Qualified Contracts contracted by NCSI within six (6) months following the expiration or notice of termination. Provided that NCSI has fully complied with Section 2.5. (Qualifications) above, Partner agrees to pay NCSI the Commission on the Net ARR for a Qualified Contract contracted by Partner. In the event of expiration or termination of the Agreement, Partner shall only be responsible for Commissions on Net ARR from Qualified Contracts contracted by Partner within six (6) months following the expiration or notice of termination
4.2. Payment. Selling Party shall pay the Commission for all applicable Qualified Contracts within thirty (30) days of the end of each calendar quarter following receipt of each applicable Net ARR payment from a Qualified Contract. All payments shall be made in US Dollars. Referring Party shall pay for any and all federal, state, local or foreign sales, use, excise, or similar taxes applicable to the Commission, if applicable.
- WARRANTIES & COVENANTS
5.1. Compliance With Laws. Each Party represents and warrants that its performance will not be in violation of any applicable law, rule, regulation, or obligation to third parties.
5.2. Performance. Each Party warrants that its performance under this Agreement will be provided through the use of reasonable care and in a professional and workmanlike manner.
5.3. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED AND STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, INTERFERENCE, MERCHANTABILITY, NON-INFRINGEMENT AND SYSTEM INTEGRATION. IF THE EXCLUSIONS SET FORTH IN THIS SECTION ARE DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, THEN ALL IMPLIED WARRANTIES AND CONDITIONS SHALL BE LIMITED IN DURATION FOR A PERIOD OF THIRTY (30) DAYS AFTER THE EFFECTIVE DATE, AND NO IMPLIED WARRANTIES OR CONDITIONS SHALL APPLY AFTER THAT PERIOD.
- INDEMNIFICATION & LIMITS OF LIABILITY
6.1. Partner Indemnification. Partner agrees to defend, indemnify and hold harmless NCSI, its affiliates, and their respective licensors, directors, officers, employees, and agents from and against any and all losses, liabilities, damages and claims incurred or asserted by any third party arising out of (i) the gross negligence or intentional misconduct of Partner, or its affiliates, employees and agents; and/or (ii) use of NCSI’s Materials by Partner, or its affiliates (including their employees and agents) not in accordance with this Agreement.
6.2. NCSI Indemnification. NCSI agrees to defend, indemnify and hold harmless Partner, its affiliates, and their respective licensors, directors, officers, employees, and agents from and against any and all losses incurred or asserted by any third party arising out of
(i) the gross negligence or intentional misconduct of NCSI, or its affiliates, employees and agents; and/or
(ii) use of Partner’s Materials by NCSI, or its affiliates (including their employees and agents) not in accordance with this Agreement.
6.3. Limitation of Liability. NEITHER PARTY, THEIR AFFILIATES AND THEIR LICENSORS SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR LOST DATA) OR FOR ANY LOSSES (EVEN IF ADVISED OF THE POSSIBILITY THEREOF) OTHER THAN DIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY IN THIS AGREEMENT SHALL NOT APPLY TO LIMIT DAMAGES AS A RESULT OF
(i) EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER ARTICLE 3 (INTELLECTUAL PROPERTY) OR
(ii) EITHER PARTY’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 6.1 AND 6.2 (PARTNER INDEMNIFICATION AND NCSI INDEMNIFICATION).
7.1. Termination Without Cause. Either Party may terminate this Agreement without cause and for its convenience upon thirty (30) days written notice to the other Party.
7.2. Effect of Termination. Upon expiration or termination of this Agreement for any reason, each Party shall immediately return to the other Party or destroy (at the other Party’s option) any property belonging to the other Party that is in its possession or control (including Confidential Information), and all rights granted to either Party hereunder immediately shall cease to exist. Further, both Parties agree to promptly refrain thereafter from using any Materials of the other Party and take all appropriate steps to remove and cancel its listing in websites, directories, public records or elsewhere, which state or indicate that it is an authorized partner of the other Party.
7.3. Post-Termination Rights; Waiver of Damages. To the maximum extent permissible under law, each Party hereby waives all claims for termination compensation or any damages related to or arising as a consequence of the termination or expiration of this Agreement to which it may have a right under the law of any jurisdiction.
7.4. Survival of Provisions. The Parties acknowledge and agree that Article 3 (Intellectual Property), Article 4 (Payment Terms), Section 6.3 (Limitation of Liability), Article 7 (Termination), and Article 8 (General) shall survive termination of this Agreement.
8.1. Equitable Relief. Each Party acknowledges and agrees that if it breaches the provisions of Article 3 (Intellectual Property) damages to the other Party would be difficult if not impossible to ascertain. As a result of the immediate and irreparable damage and loss that may be caused to the other Party for which it would have no adequate remedy, in addition to and without limiting any other remedy or right it may have, the other Party shall be entitled to seek an injunction or other equitable relief in any court of competent jurisdiction enjoining any such breach. Except as otherwise provided, all rights and remedies contained in this Agreement or provided by law shall be cumulative and no one of them shall be exclusive of any other.
8.2. Assignment. Neither Party may assign or transfer this Agreement (or any right herein) without the prior written consent of NCSI provided that a Party may assign this Agreement to an affiliate or successor in interest by merger, acquisition or reorganization. This Agreement shall bind and inure to the benefit of the Parties and their successors and permitted assigns.
8.3. Governing Law & Venue. This Agreement shall be governed by, and construed in accordance with, the laws of the State of North Carolina without regard to its choice of law provisions, the United Nations Convention on Contracts for the International Sale of Goods. Except for a breach of Article 3 (Intellectual Property), any controversy or claim between the Parties or arising out of this Agreement shall be determined by one disinterested arbitrator in binding arbitration administered by the American Arbitration Association pursuant to its Commercial Arbitration Rules and Optional Rules for Emergency Measures of Protection in Raleigh, North Carolina.
The arbitral decision and award will be final and binding on the Parties, and may be entered and enforced in any court of competent jurisdiction. The expenses of the arbitration shall be borne equally by the Parties, provided, that each Party shall pay for and bear the cost of its own experts, evidence and legal counsel. For any breach of Article 3 (Intellectual Property), Partner hereby submits to the personal jurisdiction and venue of the federal and state courts residing in North Carolina. Nothing in this clause shall be construed to preclude any Party from seeking injunctive relief in order to protect its rights. A request by a Party to a court for such injunctive relief shall not be deemed a waiver of the obligation to arbitration.
8.4. Counterparts. This Agreement may be executed by facsimile, electronically signed document, and in one or more counterparts, each of which shall be deemed an original, but all of which will together constitute the same Agreement. Any and all previous agreements and understandings between the Parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement. Each Party agrees that any terms or conditions in a purchase order or other document issued by such Party to the other Party regarding or in connection with this Agreement are void and of no force and effect. The headings in this Agreement are solely for convenience and in the event of an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as drafted in English without regard to any translations, and as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Agreement.
8.5. Waiver; Amendments No failure of either Party to exercise any power or right granted hereunder or to insist upon strict compliance with any obligation hereunder shall constitute a waiver of the rights of such Party to demand full and exact compliance with the terms of this Agreement. This Agreement shall not be amended or modified, or any term or conduction waived, except by written instrument that has been duly executed by the signature of an authorized representative of each Party. Each Party is hereby put on notice that any individual purporting to amend or modify this Agreement by conduct manifesting assent or who is not at or above the vice-president level is not authorized to do so
8.6. Relationship of Parties. Both Parties agree that they are independent entities. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the Parties. Each Party is responsible for the supervision, management and direction of its own employees. Each Party is responsible for the payment of compensation to its employees and for any injury to them occurring in the course of their employment and neither Party shall be responsible for the supervision, management and direction of the employees of the other Party
8.7. Judicial Modifications. THE PARTIES INTEND THAT THIS AGREEMENT IS VALID AND SHALL BE ENFORCED AS WRITTEN. The provisions of this Agreement are severable and the unenforceability of any provision of this Agreement shall not affect the enforceability of this Agreement or any other provision hereof. In addition, in the event that any provision of this Agreement (or portion thereof) is determined by a court to be unenforceable as drafted, the Parties acknowledge that it is their intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under applicable law.
8.8. Notices. All notices, requests and demands, other than invoices and routine communications under this Agreement, shall be in writing and shall be deemed to have been duly given when delivered, or transmitted by confirmed facsimile or email (with a copy provided by another means specified in this Section), or one (1) business day after being given to an overnight courier with a reliable system for tracking delivery, or five (5) business days after the day of certified mail, return receipt requested, postage prepaid. Any notice required to be delivered under this Agreement shall be delivered via email, in the case of Customer, to the email or office address listed in the most recent Order Form, and in the case of NCSI, to [email protected] or National Center for Social Impact Attn: General Counsel, 1053 E Whitaker Mill Rd, Raleigh, NC 27604 , U.S.A. Either Party may from time to time change the individual(s) to receive notices under this Section and Its address for notification purposes by giving the other prior written notice as provided in this Section of the new individual(s) and address and the date upon which the change will become effective.