THIS REFERRAL PROGRAM TERMS AND CONDITIONS (the "Agreement"), are entered into by and between CometChat, Inc., a Delaware Corporation ("Company"), and you (as referred to as "Finder", and together with Company, the "Parties", and each, a "Party").
WHEREAS, Company is in the business of selling Software-as-a-Service (the "Products"); and
WHEREAS, Company has established a referral program (the “Program”) through Partnerstack Inc which allows the Finder to introduce to Company any potential sales leads for the Products ("Customers"), and Finder desires to accept such engagement.
By indicating your acceptance to this Agreement, or otherwise accessing or participating in the Program, you are entering into a legally binding agreement with the Company. You hereby represent that you are of legal age, and are otherwise fully able and competent, to enter into a binding agreement. If you are participating in the Program on behalf of an organization, you represent that you have the right to bind such organization to this Agreement, and the terms “you” and “user” will include both you, the individual user, and such organization. The Company revise and update this Agreement from time to time without prior notice to you and will post the updated Agreement to the Program. Any changes to this Agreement will apply immediately upon posting. Finders continued participation in the Program after the updated Agreement is posted constitutes your acceptance to be bound by any changes.
NOW, THEREFORE, in consideration of the premises set forth above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
1. Engagement
(a) Company hereby engages Finder, and Finder hereby accepts such engagement, to act as Company's non-exclusive finder with respect to sales of the Products to Customers, solely in accordance with the terms and conditions of this Agreement. Company may in its sole discretion engage any other person or company to sell the Products.
(b) Finder shall introduce Company to Customers, but shall not participate in any sales meetings or negotiations nor have authority to offer or sell the Products to any Customer.
(c) The prices, terms, and conditions under which Company offers or sells any Products shall be determined by Company in its sole discretion. Company shall have the authority to control all discussions and negotiations regarding any proposed or actual offering or sale of Products. Nothing in this Agreement shall obligate Company to actually offer or sell any Products or consummate any transaction with any Customer. Company may terminate any negotiations or discussions at any time and has the right not to proceed with any sale of Products without any liability or obligation to pay compensation to Finder under 2 or otherwise.
(d) Finder shall defend, indemnify, and hold harmless Company, and any of its directors, officers, and shareholders, against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, incurred by or awarded against Company, arising out or resulting from any claim of a third party related to its obligations under this Agreement.
2. Compensation
In consideration for the services rendered by Finder hereunder, Company shall pay to Finder compensation ("Finder's Fee") as outlined on the Program page. The Company has the ability to change the Finder’s Fee at their sole discretion and will post changes to the Program page.
3. Finder Relationship
This Agreement shall not be construed to create any association, partnership, joint venture, employee, or agency relationship between Finder and Company for any purpose. Finder has no authority (and shall not hold itself out as having authority) to bind Company and Finder shall not make any agreements or representations on Company's behalf without Company's prior written consent. Without limiting the above, Finder will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by Company to its employees, and Company will not be responsible for withholding or paying any income, payroll, Social Security or other federal, state or local taxes, making any insurance contributions, including unemployment or disability, or obtaining worker's compensation insurance on Finder's behalf. Finder shall be responsible for, and shall indemnify Company against, all such taxes or contributions, including penalties and interest. Finder shall be solely responsible for all costs or expenses that it may incur in the performance of its activities under this Agreement. Any persons employed or engaged by Finder in connection with the performance of Finder's obligations hereunder shall be Finder's employees or contractors and Finder shall be fully responsible for them and indemnify Company against any claims made by or on behalf of any such employees or contractors.
4. Confidentiality
All non-public, confidential, or proprietary information of Company, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, and rebates, disclosed by Company to Finder, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with this Agreement, as well as the terms and conditions and the existence of this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by Company in writing. Upon Company's request, Finder shall promptly return all documents and other materials received from Company. Company shall be entitled to injunctive relief for any violation of this 4. This section shall not apply to information that is: (a) in the public domain; (b) known to the Finder at the time of disclosure; or (c) rightfully obtained by the Finder on a non-confidential basis from a third party.
5. Intellectual Property Ownership; Access & Use; Restrictions
CometChat owns all right, title and interest in and to the Products and related developments, enhancements and revisions, intellectual property rights and/or proprietary rights therein and related thereto. CometChat shall establish, and may vary from time to time, the pricing, terms and conditions related to the Products. CometChat grants Finder the right to access and use the Products solely for demonstration purposes as it relates to Finder providing the services described herein. Finder shall not (a) modify, adapt, alter, translate, copy, perform and display (publicly or otherwise) or create derivative works based on the Products; (b) merge or bundle the Products with other products and/or software; (c) sublicense, lease, rent and/or loan the Products; (d) reverse engineer, decompile, disassemble and/or otherwise attempt to derive the source code for the Products; (e) remove, modify and/or obscure any identification and/or proprietary and/or restrictive rights markings and/or notices from the Products; (f) access and/or use the Products in order to develop a product and/or service which competes with the Products; and/or (g) otherwise use, copy and/or distribute the Products except as expressly allowed hereunder. Finder shall not transmit any viruses and/or upload, access, store and/or distribute information that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, offensive or facilitates illegal activity and/or causes damage and/or injury to any person and/or property.
6. License Grants; Restrictions
During the term of this Agreement, CometChat hereby grants to Finder a non-transferable, non-exclusive, limited license to use CometChat’s (a) name, logos and/or trademarks (collectively, the “Trademarks”) and (b) brochures, marketing materials, referral links, white papers, case studies and/or other materials provided by CometChat (collectively, the “Materials”) in accordance with this Agreement solely in relation to the performance of the services described herein. Finder use of such Trademarks and Materials shall be in accordance with CometChat’s policies and procedures established from time to time. Finder shall not (i) attach any other trademark, logo and/or trade designation to the Products unless expressly agreed in writing by CometChat and/or (ii) do and/or cause to be done any act and/or anything contesting and/or in any way impairing and/or reducing CometChat’s right, title and interest in the Trademarks and/or Materials. CometChat has the right to discontinue and/or alter the form, shape and/or artwork of the Trademarks and/or content of the Materials. Finder acknowledge that Finder use of the Trademarks and/or Materials shall not create any right, title and interest, in or to the Trademarks and/or Materials and all such uses inure to the benefit of CometChat. CometChat reserves the right at any time to review Finder use of the Trademarks and/or Materials to determine if such use is in compliance with this Agreement. In the event CometChat desires to include Finder information on its Finder website at any time during the term of this Agreement, Finder hereby grant to CometChat a non-transferable, non-exclusive, limited license to use the logos and/or trademarks provided by Finder on such Finder website.
7. Publicity and Announcements
Finder shall not (orally or in writing) publicly disclose or issue any press or make any other public statement, or otherwise communicate with the media, concerning the existence of this Agreement or the subject matter hereof, without the prior written approval of Company, except to the extent that Finder (based upon the reasonable advice of counsel) is required to make any public disclosure or filing with respect to the subject matter of this Agreement by applicable law.
8. Term and Termination
(a) The term of this Agreement commences on the date of this Agreement and continues until terminated by either party in accordance with the terms and conditions of this Agreement.
(b) In addition to any remedies that may be provided in this Agreement, either Party may terminate this Agreement with immediate effect upon Notice to the other Party, if the other Party: (i) fails to pay any amount when due under this Agreement and such failure continues for 30 days after the other Party's receipt of Notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
9. Miscellaneous
(a) This Agreement and all matters arising out of or relating to this Agreement are governed by, and construed in accordance with, the laws of the State of Delaware, without regard to the conflict of laws provisions of such State. Any legal suit, action, or proceeding arising out of or relating to this Agreement must be instituted in the federal courts of the United States of America or the courts of the State of Colorado, in each case located in the City of Denver and County of Denver, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(b) Company may at any time assign, transfer, or subcontract any or all of its rights or obligations under this Agreement without Finder's prior written consent. This Agreement will inure to the benefit of and be binding upon each of the Parties and each of their respective permitted successors and permitted assigns.
(c) Each Party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any legal action, proceeding, cause of action, or counterclaim arising out of or relating to this Agreement, or the transactions contemplated hereby.
(d) If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(e) This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
(f) The Parties do not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.