TERMS AND CONDITIONS

These Terms and Conditions apply to any person executing a Referral Agreement with SmartSense Structural Systems, LLC (“Company”). By entering into a Referral Agreement for the payment of Compensation by Company in the form of commissions on payments received from Registered Opportunities with Registered Leads, you acknowledge that you have read, understand, and agree to be bound by these terms and conditions (“Terms and Conditions”), regardless of whether you attempt to register a Lead or whether Company accepts same. In addition to these Terms and Conditions, you may enter into other agreements with Company or others that will govern your use of the Intellectual Property or related services or products offered by Company or others.

These Terms are hereby incorporated into, and deemed a part of for all purposes, the Referral Agreement.

1.              Capitalized Terms. Capitalized Terms used herein which are not otherwise defined have the meaning set forth in the Referral Agreement.

2.              Amendments to Terms and Conditions. Company reserves the right to modify these Terms and Conditions at any time in our sole discretion. Any changes to these Terms and Conditions will become effective immediately upon the posting thereof. Each Referral Partner agrees to regularly review these Terms and Conditions and to keep apprised of any changes. Each Referral Partner’s continued participation in their Referral Agreement (including, without limitation, by way of failing to terminate same) following the posting of an amendment or modification will constitute acceptance of the revised Terms and Conditions.

3.              Referral Process.

a.              Qualification and Registration by Referral Partner.

i.               During the Term, the Referral Partner will make introductions to the Company to potential clients for purposes of promoting Company to such potential clients for their order, use, and installation of the Products (each a “Lead”). Referral Partner must register each Lead with Company for such lead to be a Registered Lead under the Referral Agreement. To register a Lead for Referral Partner with the Company:

1.     Referral Partner must be the first or primary introduction between Company and the Lead;
2.     Referral Partner must collect the following information:
a.     Referral Partner Name
b.     Date of Referral
c.     Referral Company
d.     Referral Industry
e.     Referral Headquarters Location
f.      Referral Website
g.     Referral Main Contact Name
h.     Referral Main Contact Title
i.       Referral Main Contact E-mail
j.      Referral Main Contact Phone
k.     Referral Relevant Notes and Approximate Use Case
3.     Referral Partner must register the Lead by personally and accurately entering all information for the lead listed above in the Company’s then-current customer relationship management software (“CRM”, as of the date of these Terms and Conditions – Hubspot); and
4.     Company must accept the referral pursuant to Section 1.b.

ii.             Referral Partner agrees and acknowledges that it is Referral Partner’s sole and exclusive responsibility, in all respects, to comply with Sections 1.a.i.1–i.3, and that same, together with Section 1.a.i.4, are conditions strictly precedent to a Lead becoming a Registered Lead. Notwithstanding anything herein which may be to the contrary, in no event shall Compensation accrue for Referral Partner for any Lead which is not a Registered Lead. In its sole and complete discretion, Company may, without obligation, provide additional personnel resources to assist with Referral Partner’s obligation contained in Section 1.a.i.4; however, the provision of such resources shall not obviate or relieve Referral Partner’s sole and exclusive responsibility to satisfy the conditions precedent contained in Sections 1.a.i.1 – i.3. Company reserves the right to change the CRM at any time, and for any reason or no reason. Referral Partner retains the sole responsibility for ensuring that all Leads, Registered Leads, Registered Opportunities, and accompanying or related information is transferred between CRMs.

iii.            In the event that a Lead for which Referral Partner attempts to register does not comply with Section 1.a.i.1, Company may (without obligation and subject to Company’s sole, complete, and final discretion) assign a commission split or lower Compensation rate for such Registered Lead or Registered Opportunity.
iv.            The Referral Partner shall use both commercially reasonable and its subjective judgment as to the appropriateness of each Lead (recognizing that some Lead(s) may not be appropriate at a particular time or at any time).

b.              Acceptance or Revocation of a Registration by Company.

i.               Company will notify Referral Partner of its acceptance or rejection within three (3) business days of complete and final submission. Company may (without obligation) provide an explanation of Company’s rejection; however, the Company’s failure to provide such explanation shall not affect the registration of the Lead. Registrations by Referral Partner created, continued, or finalized after 12:00pm Central Standard Time on a business day (or at any time on a non-business day) shall be deemed have been submitted on the next day the Company is open for business. Company may reject a Referral Partner’s registration of a Lead notwithstanding Referral Partner’s complete and timely compliance with Section 1.a, if:

1.     the prospective customer has received a proposal from Company within the previous 24 months;
2.     the prospective customer has had more than one face-to-face meeting or substantial communications with a representative of Company during the previous 12 months;
3.     Company has previously received a similar referral for the prospective customer from a third party within the previous 6 months (whether or not from a referral partner for compensation or otherwise);
4.     the prospective customer and/or any initial conceivable project(s) or opportunity(-ies) for which it is contemplated that the Company may provide products or services is in a zip code, city, county, state, country, or other geographic subdivision for which the Company has granted exclusivity over one or more product or service;
5.     the lead is an existing customer of Company;
6.     the lead has previously been entered into Company’s CRM as a potential lead by either a third-party referral partner or Company (provided, however, that Company may not reject the lead for this reason if Referral Partner’s exclusivity over any individual region is active at the time the third-party referral partner enters the information into the Company’s CRM); or
7.     Company otherwise rejects the lead in the exercise of reasonable discretion.

ii.             Company may revoke a Registered Lead which was previously accepted pursuant to Section 1.b if:

1.     the Registered Lead does not submit a Registered Opportunity with sixty (60) calendar days from Company’s acceptance of Registered Lead pursuant to Section 1.b.;
2.     a Registered Opportunity is not offered and accepted by Company and the Registered Lead within one hundred twenty (120) calendar days from acceptance;
3.     Referral Partner breaches, regardless of materiality, any requirement under Section 6 as any Lead, Registered Lead, or Registered Opportunity.

4.              Term of Registration; Termination; Survival.

a.              Term of Registration.
i.               Registering a Lead is distinct from a Registered Lead making its first written order from Company. The date that Company notifies Referral Partner of its acceptance of Referral Partner’s registration of a Lead is the “Acceptance Date” for such Lead. On the Acceptance Date, a Lead becomes a “Registered Lead” as to Referral Partner or a “Customer” as to Company. No Lead will be deemed accepted by Company as a Registered Lead for Referral Partner until the Company has notified Referral Partner in writing of Company’s acceptance. A notice of acceptance is valid only for the specific Lead or opportunity identified on the accepted Referral Form.

ii.             Subject to Sections 4.c, each Registered Lead shall have a “Registration Term” specific to such Registered Lead. The Registration Term for such Registered Lead shall begin on the Acceptance Date of such Registered Lead (such date to in all respects be during the Term) and end on the first to occur of the following events (whether before or after the expiration of the Term):

1.     the expiration of six (6) calendar months from the applicable Acceptance Date; provided, however, the term of the Registered Opportunity may be extended for an additional three (3) month period, in the sole discretion of Company, if a proposal has been submitted in writing to the Customer within the and the Customer has not provided written notice to Company of its acceptance contract award within the initial twelve (12) month period;
2.     the Registered Lead’s final termination of a master agreement or final purchase order;
3.     the insolvency, the filing of any voluntary or involuntary petition for liquidation, reorganization, or discharge under the bankruptcy laws of the United States of America (whether or not a preliminary or final order for relief is entered or whether such petition is dismissed for any reason), reorganization under the bankruptcy laws, application for appointment of receiver (whether or not a receiver is appointed or the application is dismissed), or assignment for the benefit of creditors of Referral Partner or Customer; or (iv) mutual agreement of the Parties to terminate the Registered Opportunity for any reason.

Notwithstanding anything in the Referral Agreement which may be to the contrary, no Registration Term for any Registered Lead may begin prior to the Acceptance Date for such Registered Lead or following the expiration of the Term.

iii.            If, during the Registration Term of a Registered Lead, such Registered Lead makes a written order for product or services from the Company by executing (x) a written master or general contract for services or product or (y) a written purchase order(s) with Company (each one or more contract(s) or purchase order(s) as to a Registered Lead, a “Registered Opportunity”). Upon termination of any Registered Opportunity, neither party will have any further obligations to the other party and Company shall have no obligation to pay any Compensation (as defined below) with respect to such Registered Opportunity.

b.              Quarterly Metrics and Reviews; Service Level Standards.

i.               Company may (without obligation and subject to Company’s sole and complete discretion) set quarterly metrics for Referral Partner to satisfy. Company may meet with Referral Partner on a regular basis at such frequency as the Company may determine, to review Referral Partner’s progress, participation, and success regarding such metrics, or to change such metrics.
ii.             Company may (without obligation) conduct a periodic account review, on periods not less than forty-five (45) days. Company may exercise any right under Section 3.b during such review.
iii.            Company may, from time to time any for any reason or no reason, set service-level standards of Referral Partners to abide by when communicating, pricing, discussing, or referring to Company or its Products.

c.              Termination; Effect.

i.               This Agreement may be terminated by either party upon thirty (30) days prior written notice, for any reason or no reason.
ii.             Company may terminate the Referral Agreement if:
1.     Referral Partner fails to achieve any metric set by Company or otherwise fails to uphold any standard set pursuant to Section 4.b;
2.     Fails to uphold any service level standard set in Section 4.b.iii; or
3.     Referral Partner breaches the Referral Agreement in any way material to Company.

iii.            This Agreement shall terminate automatically regardless of the actual or constructive knowledge of either Party and without any further action by either Party if Referral Partner commits any breach, regardless of damage or materiality, of Section 6.

iv.            Any (x) automatic termination pursuant to Section 4.c.iii or (y) termination by Referral Partner permanently and irrevocably disclaims and waives any obligation by Company to pay, or any right of Referral Partner to receive, any Compensation, regardless of whether or when same has become accrued, due, or owing.

v.              The following provisions shall survive the Termination Date: Section 5 (Covenants), Section 8 (Representations and Warranties), Section 10 (Indemnification), and Section 11 (Limitation of Liability).

5.              License; Covenants.

a.              Grant of License. Company provides Referral Partner a limited, non-exclusive, specific, fully revocable, discretionary, and royalty-free, license during the Term to use the name “Wafflemat” and related or associated Company Intellectual Property and Confidential Information for the sole and exclusive purpose set forth in Section 3.a.i. For purposes of the Referral Agreement, the term “Intellectual Property” means any patent, copyright, trademark, trade name, service mark, service name, brand mark, brand name, logo, corporate name, Internet domain name or industrial design, any registrations thereof and pending applications therefor (to the extent applicable and including extensions), any other intellectual property right (including, without limitation, any know-how, trade secret, trade right, formula, conditional or proprietary report or information, customer or membership list, any marketing data, and any computer program, software, database or data right), and license or other contract (including without limitation license(s) to use specific telephone numbers and/or radio channels/frequencies) relating to any of the foregoing, and any goodwill associated with any business owning, holding, or using any of the foregoing.

b.              Non-Interference. As partial consideration for the Compensation, consideration, rights, duties, obligations, representations, warranties, and authority given, stated, and granted herein, Referral Partner agrees and covenants, beginning on the Acceptance Date and continuing for a period of one (1) year following the date of last expiration of the final Registration Term, Referral Partner covenants not to solicit, take-away, dissuade, or otherwise interfere, by spoken word, written communication, gesture, or implication, any Lead, Registered Lead, or other customer of Company from beginning or continuing its relationship with Company.
c.              Confidentiality.

i.               Referral Partner and Company, and either party’s affiliates, and their or their affiliates’ officers, directors, trustees, employees, advisers, agents and other personnel, shall use at least the same care and discretion to prevent disclosure of Confidential Information (as hereinafter defined) of the other party as it uses with similar Confidential Information of its own that it does not desire to disclose, but in no event with less than a reasonable degree of care. Either party may use Confidential Information of the other party strictly in order to carry out its obligations hereunder, but in doing so will only allow dissemination of Confidential Information internally on a need-to-know basis (provided such persons are first informed of the confidential nature of such information and directed to use or disclose it only as permitted herein). If either party must disclose any Confidential Information of the other party as required by law, then that party may make such disclosure after providing the other party with reasonable notice so that the other party may seek protective relief.

ii.             Nothing herein shall be construed as granting either party any property rights, by license or otherwise, to any Confidential Information of the other party, or to any invention or any patent, copyright, trademark, or other intellectual property right of the other party except as specifically provided for in the Referral Agreement. Neither party shall make, have made, use or sell any product or service or other item using, incorporating or derived from any of the other party’s Confidential Information except as provided in the Referral Agreement.
iii.            The obligations under this Paragraph will survive the Termination Date, but Confidential Information that is not a trade secret will cease to be protected hereunder two (2) years after the Termination Date. On or before the Termination Date, each party will return to the other party all of that other party’s Confidential Information embodied in tangible form, and will destroy, unless otherwise agreed, all such other Confidential Information in that party’s possession.
iv.            For purposes of this Section 9, “Confidential Information” means (1) business or technical information or data (oral, written, electronic or otherwise), including, without limitation, a trade secret (as defined under applicable law), of or about a party provided or made available by such party to the other party that is competitively or commercially valuable to that party and not generally known or readily available by legal means to others, and (2) information regarding the existence, content or status of the business relationship described herein. Confidential Information shall not include information which (i) at the time of disclosure, was published, known publicly, or otherwise in the public domain, (ii) after disclosure, is published, becomes known publicly, or otherwise becomes part of the public domain through no fault of the party receiving the Confidential Information, (iii) prior to the time of disclosure, is known by that receiving party or, after disclosure, is independently developed by that receiving party as evidenced by its written records, (iv) after disclosure, is made available to that receiving party in good faith by a third party who is under no obligation of confidentiality or secrecy to the party disclosing the Confidential Information, or (v) information agreed to be disclosed in accordance with Section 9 hereof.

d.              Non-Disparagement. Each Party agrees that, unless required to do so by legal process or order, it will not make any disparaging statements or representations, either directly or indirectly, whether orally or in writing, by word or gesture, to any person whatsoever, about the other Party, such Party's members, managers, owners, directors, officers, employees, agents, counsel, advisors, contractors, products, services, or family member(s). For purposes of this Section 5.d, a disparaging statement or representation is any communication that, if publicized to another, would cause or tend to cause the recipient of the communication to question the integrity, competence, good character, business condition, operations, financial, or service or product quality of the person or entity to whom the communication relates, whether or not true or based in fact or belief.

e.              Intellectual Property. Referral Partner acknowledges that, to the fullest extent provided by law, all Intellectual Property is the property of Company, and Referral Partner has no rights to such property, despite Referral Partner’s referral relationship with Company.

i.               Assignment of Inventions. During the course of Referral Partner’s referral relationship with Company, Referral Partner will promptly disclose to Company all inventions, discoveries, improvements, developments, and innovations (the “Inventions’’) whether patentable or not, conceived in whole or in part by Referral Partner during business hours or thereafter, which (a) result from any referral made to or on behalf of Company or (b) result from the license, access, or use of Company’s Intellectual Property, Confidential Information, or other property, time, material, contractors, or consultants. Referral Partner agrees to assign and hereby assigns to Company, its successors and assigns, all right, title, and interest to any such Inventions, including the right to sue for past infringement, and will execute, acknowledge, and deliver such documents as are necessary to obtain patents in any country and to assist, at Company’s expense, in the defense and prosecution of any such patents during the term of Referral Partner’s business relationship with Company or thereafter.

ii.             Assignment of Copyrights. Referral Partner acknowledges that a work-made-for-hire relationship exists between Company and Referral Partner. However, to the extent that doctrine may not be applicable or effective to assign all copyrights created by Referral Partner in the course of his or her referral relationship, Referral Partner hereby assigns, transfers, and conveys unto Company, its successors and assigns, all right, title, and interest in and to the copyright in any methods, processes, marketing materials, trademarks, slogans, trade names, documentation, or other materials and creative works designed, developed, or authored by Referral Partner, individually or with other employees, contractors, agents, or consultants of Company and its affiliates, in connection with any actions taken by Referral Partner on behalf of Company and its affiliates (whether or not described herein or related hereto), and Referral Partner hereby transfers and conveys to Company the right to recover for past and future infringement of the copyrights assigned herein.

f.               Remedies. Because Referral Partner’s license of the Intellectual Property, access to the Confidential Information, and in consideration of the value of such property to Company, Referral Partner expressly acknowledges that the Confidentiality, No-Raid, Non-Interference, and Non-Disparagement covenants are reasonable and necessary in order to protect Company’s legitimate business interests and to maintain the confidential nature of Company’s Intellectual Property, Confidential Information, and trade secrets. Referral Partner expressly acknowledges that the enforcement of the restrictive covenants contained herein will not prevent or unreasonably restrict Referral Partner from competing, earning a livelihood, or any other commercial activity. Referral Partner further agrees that in the event of an actual or threatened breach by Referral Partner of any of the Non-Disclosure or Non-Solicitation clauses, Company will be irreparably harmed and the full extent of injury resulting therefrom will be impossible to calculate. Thus, Company will not have an adequate remedy at law. Accordingly, Referral Partner agrees that Company will be entitled to injunctive relief, without bond or security, in addition to having an action at law for damages.

6.              Authority and Discretion of Company and Referral Partner.

a.              Referral Partner agrees that it has no confidential, trade secret, proprietary, or other ownership interest in any Lead or the information submitted concerning any Lead, and expressly disclaims same. The Company may meet, conference, contact, and/or negotiate independently at any time with any potential client, any Lead, or any Registered Lead concerning any matter, including (without limitation) a potential relationship and the terms applicable to such potential relationship. The Company’s decision to enter into or not enter into an arrangement with a potential client, Lead, or Registered Lead is final and subject to its sole, complete, and absolute discretion. The Company is under no obligation to seek or obtain Referral Partner’s notice, consent, advice, or input concerning such decision. The Referral Partner may not, has no right to, and affirmatively covenants not to, object, prevent, or otherwise interfere with any decisions made by the Company regarding the terms or conditions of a particular relationship entered into after a Lead. Referral Partner agrees and acknowledges that, immediately following the first discussion, exchange of correspondence, or other interaction between a lead and Referral Partner (without any additional action on the part of Company), Company has the primary business relationship and acknowledges that Company has the expectation that it is likely to enter into a business relationship with such customer, and Referral Partner expressly waives any rights or arguments to contravene same.
b.              After Company’s acceptance and registration of a Lead, Company will be solely responsible for the sales process, including all subsequent Company Customer contacts, negotiations, and the execution of any and all agreements. Referral Partner will participate in subsequent meetings with a Company Customer only upon invitation from Company. Referral Partner will not make any representations, warranties or promises regarding Company’s products or services (including pricing) other than those expressly authorized by the Referral Agreement or contained in provided marketing materials or on www.wafflemat.com. Referral Partner shall have no authority to bind, obligate, or commit the Company by any promise or representation or enter into any contracts or agreements on behalf of the Company, and agrees to promptly inform each and every lead of the limited scope of Referral Partner’s authority. Referral Partner agrees to communicate the official pricing schedule as promulgated by the Company, currently attached as Schedule 1. Company may amend Schedule 1 in its sole, complete, absolute, and exclusive discretion from time to time, for any reason or no reason. Referral Partner agrees that Referral Partner will not make any deceptive, misleading, or otherwise inconsistent representations to any actual or prospective lead, customer, relationship, vendor, referral partner, employee, or any agent of any of the foregoing, Referral Partner, or Company. Referral Partner agrees to use all due diligence to verify all facts and information which Referral Partner furnishes to (x) any lead, customer, relationship, vendor, referral partner, employee, or any of agent of the foregoing or (y) to the Company Concerning any Lead, Registered, Lead, or Registered Opportunity.
c.              Referral Partner shall comply with the U.S. Foreign Corrupt Practices Act (15 U.S.C. § 78dd-1, et seq.) and the anti-corruption laws of other countries, to the extent applicable.  Referral Partner hereby represents and warrants that, in its performance under the Referral Agreement Referral Partner has not, and will not at any time, directly or indirectly (through a subcontractor or other third party), pay, offer, give, or promise to pay or give, or authorize the payment, giving, or granting of any monies or any other thing of value to influence the improper performance of any individual government officials, employees of state-owned enterprises, or Lead or Registered Lead. Referral Partner shall promptly inform Company in writing upon becoming aware of any violations of laws in connection with the Referral Agreement.  Referral Partner hereby acknowledges and agrees that any violation by Referral Partner of this Section will constitute a material breach of the Referral Agreement.  In the event of such a violation, Company will have the right to terminate the Referral Agreement, without any liability whatsoever to Referral Partner, immediately upon providing written notice of termination to Referral Partner. Termination of the Referral Agreement by Company under this section shall be in addition to, and not in lieu of, Company’s other legal rights and remedies.

7.              Compensation.

a.              For any Registered Lead which makes, takes delivery, and pays Company for a Registered Opportunity during a Registered Lead’s Registration Term, Company will pay Referral Partner a commission (the “Compensation”) in amounts set forth in the Referral Agreement. Compensation accrues on the express conditions that (x) a potential customer is a Registered Lead, (y) such customer completes and takes final delivery of an order, and (z) Company is paid by such customer in full within One Hundred Eighty (180) calendar days following the final delivery.

b.              Compensation shall be paid only on such Product delivered and for which Company is paid pursuant to such order finalized by customer during the Compensation Term. Compensation shall be paid on or before the thirtieth (30th) calendar day following Company’s full and final receipt of payment by such Registered Lead. If, at any time prior to or following Company’s payment to Referral Partner of the Compensation, Company refunds, is charged back, credits, or otherwise repays or negatively adjusts any account or amount paid to Company by the Registered Lead which, if such adjusted amount was originally paid to Company, would lower the Compensation paid to Referral Partner, then, at the exclusive election of Company, (i) Referral Partner shall repay such amounts to Company within fifteen (15) calendar days of Referral Partner’s knowledge of such refund, charge back, credit, repayment, or adjustment (regardless of Company’s actual or constructive knowledge of same), without notice, demand, or further action by Company or (ii) reduce the amount of any future Compensation to Referral Partner by Company. Customer may (without obligation), and Referral Partner authorizes Company to, setoff and/or credit any amounts owed or otherwise subject to an adjustment set forth in the immediately preceding sentence against any amounts otherwise by Company to Referral Partner, regardless of origin, authority, source, or basis.

c.              Referral Partner agrees that Company may terminate the Referral Agreement for any reason or no reason, notwithstanding the pendency of any Lead or registration process therefor, and that such termination is not made in bad faith or for the purposes of circumventing Company’s obligations under the Referral Agreement. Referral Partner represents that One Hundred Eighty days is reasonable and sufficient, in Referral Partner’s opinion and consistent with Referral Partner’s experience, for a Lead to be complete and paid in all respects, and freely waives and disclaims any Compensation for amounts paid to Company pursuant to a Registered Opportunity or a Registered Lead after such 180-day period, regardless of actual, potential, or alleged fault, negligence, or willful misconduct by the Company. Referral Partner covenants to take reasonable steps requested by the Company to assist in the collection of any amounts outstanding from a Registered Lead. Referral Partner agrees that Company may reduce Referral Partner’s Compensation, pro rata, by (i) any amounts incurred in the collection of amounts outstanding from a Registered Opportunity or (ii) any interest charged or available to be charged, if a partial payment is made by the Registered Lead on a Registered Opportunity (even if in full satisfaction of same as part of a negotiated settlement or resolution). Referral Partner consents to the allocation of proceeds to pay items (i) and (ii) first, and a pro rata reduction of Compensation taking into consideration same.

d.              Referral Partner shall be responsible for any and all income and other applicable taxes, and any mandatory, permissive, or required withholdings applicable thereto, in connection with Company’s payment of or Referral Partner’s receipt of Compensation. Referral Partner shall be paid as an independent contractor of the Company. The Company will not be responsible for any expenses of the Referral Partner in the course of the performance of its obligations hereunder, unless Referral Partner has been provided prior, specific, and written approval for the exact amount claimed by the an officer of Company.

e.              Referral Partner further agrees and acknowledges that, notwithstanding anything herein to the contrary, at no point is Compensation due to Referral Partner from Company if Company has not fully and finally paid for such Registered Opportunity.

8.              Representations and Warranties.

a.              Referral Partner represents and warrants that:
i.               it has the right to enter into the Referral Agreement and the right to grant the rights and assume the obligations contained herein;
ii.             it is not a party to any agreement, contract, or understanding that would prevent, limit, restrict, or hinder its performance of the Referral Agreement;
iii.            during the Term, it will not enter into any contract, agreement, or understanding which is in conflict or which would interfere with the full and complete performance of any of the duties or grants hereunder; and
iv.            it is not a party to any pending claims or litigation which might affect its performance of the Referral Agreement.

b.              EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO ANY SERVICES PROVIDED TO THE OTHER PARTY AND OTHER OBLIGATIONS UNDERTAKEN HEREUNDER, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF REFERRAL PARTNER HAS BEEN INFORMED OF SUCH PURPOSE), OR WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. FURTHER, THE COMPANY DOES NOT MAKE ANY WARRANTY THAT THE QUALITY OF THE SERVICES OR PRODUCTS PURCHASED OR OBTAINED BY A CLIENT AFTER A REFERRAL WILL MEET EITHER REFERRAL PARTNER’S OR ANY CUSTOMER’S EXPECTATIONS, AND REFERRAL PARTNER IS NOT AUTHORIZED TO MAKE ANY REPRESENTATION OR WARRANTY REGARDING SAME. COMPANY ALSO MAKES NO REPRESETNATION OR WARRANTY, AND EXPRESSLY DISCLAIMS SAME, REGARDING THE RIGHTS, STATUS, ENFORCEABILITY, INFRINGEMENT, OR USE OF ANY INTELLECTUAL PROPERTY OR MARKETING MATERIAL.

9.              Marketing Materials. At the Company’s option, Company may provide Referral Partner marketing materials and/or agree with Referral Partner on a marketing plan for Referral Partner’s use and/or promotion of Company and its services. In such a case, Referral Partner agrees to strictly follow such plan and use such materials only for their intended purpose, in all cases consistent with the Referral Agreement. Referral Partner agrees that all such marketing materials and marketing plans, including their form, media, and contents, are the exclusive property of Company, regardless of the character, quantity, or quality Referral Partner’s contribution to same. If the Referral Agreement is terminated or any reason or no reason, or either party seeks to enforce all or any part of the Referral Agreement, Referral Partner agrees that Referral Partner will immediately, at its own cost, return and/or destroy any draft or final marketing materials or marketing plans.

10.           Indemnification.

a.              Referral Partner (an “Indemnifying Party”) shall indemnify, defend and hold harmless Company (the “Indemnified Party”), its affiliates, and each of their directors, officers, employees, and agents from and against all claims, suits and proceedings and any and all related liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) incurred by the Indemnified Party, relating to or arising out of the breach by the Indemnifying Party of any of its duties, obligations, representations or warranties under the Referral Agreement.
b.              An Indemnified Party will (i) promptly notify the Indemnifying Party of any claim, suit, or proceeding for which indemnity is claimed (but the Indemnifying Party shall be relieved from liability only to the extent any delay in providing such notice prevents the Indemnifying Party from defending such claim, suit or proceeding); (ii) cooperate reasonably with the Indemnifying Party at the Indemnifying Party’s expense; and allow the Indemnifying Party to control the defense or settlement thereof. The Indemnified Party will have the right to participate in any defense of a claim and/or to be represented by counsel of its own choosing at its own expense.

11.           Limitation of Liability.

a.              NEITHER PARTY HERETO WILL BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
b.              A party’s failure to bring a claim against the other party within one (1) year after the date on which the claiming party becomes aware, or should have become aware, of the existence of a potential claim, constitutes a waiver of such claim.

12.           Miscellaneous.

a.              Partial Invalidity. If any provision of the Referral Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, such determination will not affect the validity or enforceability of any other part or provision of the Referral Agreement.
b.              No Waiver. The waiver by any party of any breach of any provision of the Agreement by any other party will not be construed to be a waiver of that party’s rights regarding any succeeding breach of any such provision or a waiver of the provision itself. No right or provision may be modified, waived, released, discharged, or amended by course of dealing, course of business, usage of trade, or implied understanding.
c.              Entire Agreement. This Agreement, including all exhibits hereto, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior and previous proposals, negotiations, representations, commitments, and all other communications, both oral and written, among the parties, including (without limitation) any contemporaneous oral or written understandings or agreements among the Parties. No release, discharge, modification, or amendment of the Referral Agreement or any of its provisions shall be binding upon any Party unless made in writing and duly executed by authorized representatives of the Parties.
d.              Governing Law; Venue. Any relationship between the Parties and the Referral Agreement will be governed by, interpreted by, enforced by, and construed in accordance with the laws of the State of Texas, without regard to any applicable conflicts of laws, except to the extent that certain matters may be governed by federal law by reason of preemption. By its signature to the Referral Agreement, each party hereunder irrevocably submits to the exclusive jurisdiction and venue of the state courts, to the exclusion of the federal courts (notwithstanding the existence of feeral court jurisdiction) located in Dallas County, State of Texas, as to any and all disputes arising from, related to, or in any way concerning the Referral Agreement, and such jurisdiction shall be the exclusive venue for all such disputes. Each of the parties hereto agrees any judgment may be executed against the assets of a Party in any jurisdiction or country, so long as such judgment was first (i) rendered by a court of competent jurisdiction in accordance with the Referral Agreement and (ii) entered in any court of record of the State of Texas located in Dallas County, Texas. By its execution hereof, each party hereby irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to any suit, action, or proceeding Concerning the Referral Agreement being brought in the state courts of competent jurisdiction located in Dallas County, Texas, and hereby further irrevocably waives any claim that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum and hereby disclaims and waives all such arguments Concerning same.
e.               Representation by Counsel; No Presumption. Each party hereto represents and agrees with each other that it has retained and been represented by, or had each and every time and opportunity to be retained and represented by, independent counsel of its own choosing, and that it has had the full right and opportunity to consult with its respective attorney(s), that to the extent, if any, that it desired, it availed itself of such right and opportunity; that it or its authorized officers (as the case may be) have carefully read and fully understand the Referral Agreement in its entirety and have had it fully explained to them by such party’s respective counsel (or had the time and opportunity for same); that each is fully aware of the contents thereof and its meaning, intent, and legal effect; and that it or its authorized officer (as the case may be) is competent to execute the Referral Agreement and has executed the Referral Agreement free from coercion, duress, undue influence, or ambiguities as to its contents. The Parties acknowledge that any applicable law that would require interpretation of any claimed ambiguities in the Referral Agreement against the Party that drafted it has no application and is expressly waived. If any claim is made by a Party relating to any conflict, omission, or ambiguity in the provisions of the Referral Agreement, no presumption or burden of proof or persuasion will be implied because the Referral Agreement was prepared by or at the request of all parties or its counsel, and was sufficiently negotiated so as to make any such presumption inapplicable.
f.              Relationship of Parties. Nothing contained in the Referral Agreement will be deemed or construed as creating a joint venture or partnership between Company and Referral Partner. Neither party, by virtue of the Referral Agreement, is authorized as an agent, employee, or legal representative of the other. Referral Partner agrees that it shall not represent to any person that it is authorized to represent or bind Company in any capacity, and covenants to correct any understanding by any person with whom Referral Partner communicates which Referral Partner knows or should have known that such person believed Referral Partner was an agent or representative of Company with any authority to bind Company in any respect. Except as specifically set forth herein, neither party will have the power to control the activities and operations of the other and their status is, and at all times will continue to be, that of independent contractors.
g.              Assignment; Effect of Change in Control. Referral Partner may not assign its rights or obligations under the Referral Agreement (whether by merger, consolidation, sale of assets, sale of stock or otherwise) without the other parties’ written consent. Company may assign its rights or obligations under the Referral Agreement at any time, for any reason, with or without notice to Referral Partner.
h.               Non-Exclusivity. Each party understands the Referral Agreement is non-exclusive. Without limiting the generality of the foregoing, each party acknowledges that nothing in the Referral Agreement prevents or limits the other party from marketing and licensing the other party’s products or any other software or service, in whole or in part, directly or indirectly, to any third parties or from appointing representatives, resellers, distributors and other marketing agents, without liability to the other party.
i.               Waiver of Jury Trial. EACH OF COMPANY AND REFERRAL PARTNER SPECIFICALLY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY COURT WITH RESPECT TO ANY CONTRACTUAL, TORTIOUS, OR STATUTORY CLAIM, COUNTERCLAIM, OR CROSS-CLAIM AGAINST THE OTHER ARISING OUT, RELATED TO, OR ANY EACH EVERY AND ANY WAY CONCERNING THIS AGREEMENT. THIS IS BECAUSE, AMONG OTHER REASONS, THE PARTIES HERETO, EACH OF WHOM IS REPRESENTED BY COUNSEL OR HAS HAD EVERY OPPORTUNITY TO RETAIN, ENGAGE, AND BE REPRESENTED BY COUNSEL AND HAS CHOSEN NOT TO, BELIEVE THAT THE COMPLEX COMMERCIAL AND PROFESSIONAL ASPECTS OF THEIR DEALING WITH ONE ANOTHER MAKE A JURY DETERMINATION NEITHER DESIRABLE NOR APPROPRIATE.
j.              Additional Terms. Certain provisions of a Referral Agreement may contain provisions, terms, and conditions which deviate from these Terms and Conditions. Different or additional terms in a Referral Agreement are, whenever possible, to be treated as additional terms between the Parties. In the event of a conflict, the provisions, terms, and conditions of the Referral Agreement will control; provided, however, that if the conflicting provisions, terms, or conditions of the Referral Agreement are less favorable to the Company, then the provisions, terms, and conditions of these Terms and Conditions (as may be amended or modified) will control.