Referral Fee Agreement
THESE REFERRAL FEE AGREEMENT SUPPLEMENTAL TERMS, together with the REFERRAL FEE AGREEMENT TERMS AND CONDITIONS, (the “Agreement“), are entered into by and between Backbone PLM, Inc., a Delaware corporation (“Company“), and the party indicated on the Referral Fee Agreement Terms and Conditions document (“Finder“, and together with Company, the “Parties“, and each, a “Party“).
WHEREAS, Company is in the business of providing next generation product lifecycle management solutions (the “Products“); and
WHEREAS, Company desires to engage Finder to introduce to Company any potential sales leads for the Products (“Customers“), and Finder desires to accept such engagement.
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:
(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 anywhere in the world (the “Territory“) during the Term, 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, and perform such other responsibilities as directed by Company, including forwarding marketing materials and sales decks provided by Company and participating in partner mapping and sales meetings, but shall not 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 Section 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 reasonable attorney fees, fees and the costs of enforcing any right to indemnification under this Agreement, incurred 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“) on the initial sale made by Company to each Customer introduced by Finder to Company hereunder if the Customer executes the initial sales contract within six (6) months from the date of introduction at the rate specified below:
(i) five percent (5%) of Purchase Price (as defined hereunder) for each Customer introduced by Finder, subject to the conditions stated in this Section 2; and
(ii) an additional percentage of the purchase price, to be determined at the sole discretion of the Company and not to exceed an aggregate of ten percent (10%) of the Purchase Price, for each Customer introduced by Finder where Finder Substantively Participates (as defined hereunder) in the initial sale process.
“Purchase Price” means the net sales price (exclusive of sales tax) and after applying any discounts, credits, rebates, and adjustments) of the Products sold by Company to Customers introduced by Finder hereunder under the Customer’s first order, or for the first twelve (12) months of ongoing service provided to Customer. Company shall pay the Finder’s Fee within sixty (60) days of Company’s actual receipt of unconditional payment of the corresponding Purchase Price from Customer. No Finder’s Fee shall be owed hereunder for any sale to a Customer if Company had a previous relationship or contact with that Customer.
“Substantively Participates” means Finder takes an active participation role in the sales processes, including participation in sales meetings and demonstrating the Products to Customer. The determination of whether the activity of Finder raises to the
3. Independent Contractor. Finder is an independent contractor of Company, and 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 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 Section 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. Term and Termination.
(a) The term of this Agreement commences on the date of this Agreement and continues for a period of 1 year, unless and until earlier terminated as provided under this Agreement (the “Initial Term“). Upon expiration of the Initial Term, this Agreement automatically renews for additional successive one (1) year terms unless and until either Party provides Notice of nonrenewal at least fifteen (15) days prior to the end of the thencurrent term, or unless and until earlier terminated as provided under this Agreement (each a “Renewal Term” and together with the Initial Term, the “Term“).
(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 thirty (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.
(a) All notices, requests, consents, claims, demands, waivers, summons and other legal process, and other similar types of communications hereunder (each, a “Notice“) must be in writing and addressed to the relevant Party at the address set forth on the first page of this Agreement (or to such other address that may be designated by the receiving Party from time to time in accordance with this Section 7(a)). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). A Notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this Section 7(a).
(b) 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.
(c) This Agreement, and each of the terms and provisions hereof, may only be amended, modified, waived, or supplemented by an agreement in writing signed by each Party.
(d) Finder shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section shall be null and void. 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.
(e) This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together constitutes one and the same agreement. Delivery of an executed counterpart of this Agreement electronically or by facsimile shall be effective as delivery of an original executed counterpart of this Agreement.
(f) 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.
(g) 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.
(h) 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.
(i) The parties do not confer any rights or remedies upon any person other than the Parties and their respective successors and permitted assigns.