REFERRAL PROGRAM AGREEMENT

Last Updated: July 2019

This Referral Program Agreement (“Agreement”) governs your participation in the Contact Mapping referral program and is entered into between Contact Mapping, Inc., a Delaware corporation (“Contact Mapping”) and you as an individual or other entity on whose behalf you accepting this Agreement (“Referral Partner”) and is effective as of the earlier of your registration and acceptance of this Agreement to become a referral partner or your acceptance of any Referral Reward (defined below) (the “Effective Date”). You, the individual registering as a Referral Partner on your behalf or on behalf of another entity’s behalf represent and warrant that you have the full right and authority to bind Referral Partner to this Agreement, and that Referral Partner is fully aware of, understands, and agrees to be bound by all the terms and conditions of this Agreement.

BY CLICKING “I ACCEPT” OR “I AGREE” WHEN REGISTERING AS A REFERRAL PARTNER, OR OTHERWISE ACCEPTING ANY REFERRAL REWARD, REFERRAL PARTNER ACKNOWLEDGES THAT REFERRAL PARTNER HAS READ, UNDERSTANDS, AND AGREES TO ACCEPT AND BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING ANY ADDITIONAL TERMS INCORPORATED BY REFERENCE HEREIN. THE CONTACT MAPPING REFERRAL REWARD IS AVAILABLE ONLY TO THOSE WHO CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW. BY AGREEING TO THIS AGREEMENT, REFERRAL PARTNER REPRESENTS AND WARRANTS: (I) THAT REFERRAL PARTNER CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW; (II) THAT REFERRAL PARTNER HAS NOT PREVIOUSLY BEEN SUSPENDED OR REMOVED FROM CONTACT MAPPING SERVICES OR ITS REFERRAL PARTNER PROGRAM; AND (III) THAT REFERRAL PARTNER’S REGISTRATION AND ACTING AS A REFERRAL PARTNER IS IN COMPLIANCE WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS. IF REFERRAL PARTNER DOES NOT QUALIFY FOR REFERRAL PARTNER PROGRAM, OR DOES NOT AGREE TO THIS AGREEMENT, REFERRAL PARTNER SHOULD NOT, AND MAY NOT REGISTER FOR THE REFERRAL PARTNER PROGRAM OR ACCEPT ANY REFERRAL REWARD.

In consideration of the mutual promises and undertakings of the parties, and for other good and valuable consideration, the receipt of which is hereby acknowledged, Contact Mapping and Referral Partner agree as follows:

1.              Definitions.

1.1            Customer” means a person, corporation, or other legal entity that has entered into a Customer Agreement and has purchased the right to use Services for its own internal purposes and not for use for or on behalf of others.

1.2            Customer Agreement” means a Contact Mapping customer agreement for Services entered between Contact Mapping and a Contact Mapping customer.

1.3            Intellectual Property Rights” means all existing and future worldwide copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.

1.4            Lead” means a potential Customer for the Services.

1.5            Services” means the Contact Mapping services listed in Exhibit A that Contact Mapping makes available to Customers pursuant to a Customer Agreement.

1.6            Territory” means worldwide.

2.              Relationship.

2.1            Appointment. Subject to the terms and conditions of this Agreement, Contact Mapping hereby appoints Referral Partner, and Referral Partner hereby accepts such appointment, as a non-exclusive referral partner in the Territory to assist Contact Mapping in the promotion and sales of the Services. Referral Partner’s sole authority will be to promote the Services to potential Customers. During the term of this Agreement, Referral Partner must maintain an active Contact Mapping customer account and pay all applicable fees for such customer account.

2.2            Referrals. Referral Partner shall use reasonable efforts to promote the Services to Leads and provide Contact Mapping with Leads. Referral Partner shall use any technology or process required by Contact Mapping to register and track Leads. Contact Mapping will make available to Referral Partner information regarding the Services, including access to product information and marketing materials.

3.              Referral Reward and Payment.

3.1            Qualified Referrals. To qualify for a referral commission, each Lead must (a) have been referred to Contact Mapping by Referral Partner using Contact Mapping’s referral program tools and technology; (b) not already be a Customer; (c) not already be a potential Customer with whom Contact Mapping is already working on an open Lead; (d) complete Contact Mapping’s free trial period, pay the associated fees, and not request or receive a refund within Contact Mapping’s standard grace period, and (e) enter into a Contact Mapping Agreement no later than six months after Contact Mapping’s receipt of the Lead. Qualified Referral” means each Lead that meets each of the conditions set forth in this Section 3.1. All Leads received from Referral Partner will expire six months after receipt of the lead by Contact Mapping. Contact Mapping shall decide in its sole discretion if a Lead meets the criteria for being a Qualified Referral.

3.2            Referral Reward. For each Qualified Referral, Contact Mapping will provide Referral Partner the referral reward set forth on referral rewards schedule located on Contact Mapping’s website here (“Referral Reward”). Contact Mapping may change the Referral Rewards at any time in its sole discretion. In the event that two or more authorized Lead referral partners of Contact Mapping, for any reason whatsoever, claim the right to the Referral Reward for the same Qualified Referral, Contact Mapping reserves the right to award the Referral Reward, as applicable, to one of the Lead referral partners or to divide the Referral Reward among the Lead referral partners in such proportions as Contact Mapping shall determine to be equitable, and its decision to do so and the manner in which it does so shall be final and binding on all parties involved.

3.3            Payment. Subject to the terms and conditions of this Agreement, Contact Mapping will provide Referral Rewards accrued within thirty days after the last day of the month in which Contact Mapping actually receives the applicable fees from each Qualified Referral as set forth in the applicable Contact Mapping Agreement. The payment of monetary Referral Rewards will be made in U.S. Dollars through Contact Mapping’s preferred payment method, which may include PayPal. Referral Partner shall be solely responsible for payment of any and all taxes (including but not limited to national, state, local and income taxes) and charges arising from or imposed on provision of Referral Rewards to Referral Partner by Contact Mapping. If a Qualified Referral requests and obtains a refund of any fees within six months after performance of the Services, the amount of the applicable monetary Referral Rewards paid to Referral Partner withheld by Contact Mapping from future Referral Reward payments. Contact Mapping reserves the right to withhold provision of any Referral Reward and any other benefit provided by Contact Mapping under this Agreement in the event Referral Partner no longer has an active Contact Mapping customer account.

3.4            Changes. Contact Mapping shall have sole discretion and authority to change the terms of this Section 3 upon notice to Referral Partner and Referral Partner’s continued performance under this Agreement will be deemed to be acceptance of such terms.

4.              Trademarks.

4.1            Referential Use of Trademarks. This Agreement does not grant Referral Partner any right, title, interest, or license in or to any of Contact Mapping’s names, word marks, logos, logotypes, trade dress, designs, or other trademarks. Referral Partner may use Contact Mapping’s corporate name, technology names and trademarks in plain text (but not logos, trade dress, designs or word marks in stylized form) to accurately identify and refer to Contact Mapping and its technology and services, provided that Referral Partner’s use is not likely to cause confusion about the source of Referral Partner’s solutions or Referral Partner’s relationship with Contact Mapping and Referral Partner’s use is according to our usage guidelines.

4.2            Promotional Literature. Referral Partner will use the brochures and other promotional literature describing Services that Contact Mapping may provide to Referral Partner (“Promotional Literature”). Referral Partner may reproduce the Promotional Literature for distribution within the Territory. All reproductions will include all required and directed Contact Mapping copyright and other proprietary notices.

5.              Compliance with Laws. Referral Partner will at all times comply with all applicable U.S. and international laws and regulations and will refrain from any unethical conduct or any other conduct that tends to damage the reputation of Contact Mapping or Services in connection with this Agreement.

6.              Confidentiality.

6.1            Confidential Information. Each party (the “Disclosing Party”) may from time to time disclose or make available to the other party (the “Receiving Party”) certain information regarding the business of the Disclosing Party and its suppliers, including technical, marketing, product, service, financial, employee, planning, and other confidential or proprietary information (“Confidential Information”). Any information that the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party will be considered Confidential Information of the Disclosing Party. Contact Mapping’s Confidential Information includes, without limitation, non-public information about its products, services, and pricing.

6.2            Protection of Confidential Information. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by the Agreement and will disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

6.3            Exceptions. The Receiving Party’s obligations under Section 6.2 with respect to any Confidential Information of the Disclosing Party will terminate if such information: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party; (ii) necessary for the Receiving Party to enforce its rights under the Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court of similar judicial or administrative body; provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s request and expense, in any lawful action to contest or limit the scope of such required disclosure.

6.4            Return of Confidential Information. The Receiving Party will return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party upon the expiration or termination of the Agreement. The Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this Section 6.4.

6.5            Confidentiality of Agreement. Neither party will disclose any terms of the Agreement to anyone other than its attorneys, accountants, and other professional advisors except: (a) as required by law; (b) pursuant to a mutually agreeable press release; or (c) in connection with a contemplated transfer of such party’s business permitted by Section 10.4 (provided that any third party to whom the terms of the Agreement are to be disclosed signs a confidentiality agreement reasonably satisfactory to the other party).

7.              Warranties.

7.1            Warranties by Both Parties. Each party warrants that it has full power and authority to enter into and perform this Agreement, and the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement.

7.2            Warranties Made by Referral Partner. Referral Partner will: (a) not make or publish any representations, warranties, or guarantees concerning Services, (b) make no false or misleading representations and not publish or employ, or cooperate in the publication or employment of, any misleading or deceptive advertising material with regard to Contact Mapping or its Services, or (c) provide its obligations under this Agreement in a professional and workmanlike manner.

7.3            Disclaimer of Warranty. THE EXPRESS WARRANTIES IN SECTION 7.1 AND 7.2 ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING SERVICES, ANY OTHER SOFTWARE AND SERVICES, AND CONTACT MAPPING DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF PERFORMANCE OR COURSE OF DEALING. REFERRAL PARTNER ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES PROVIDED HEREIN AND THAT NO WARRANTIES ARE MADE HEREIN BY ANY OF CONTACT MAPPING’S SUPPLIERS.

8.              Limitation of Liability. EXCEPT FOR A PARTY’S BREACH OF SECTION 6 OR 7.2, OR EACH PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF REFERRAL REWARD PAID BY CONTACT MAPPING TO REFERRAL PARTNER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY. EXCEPT FOR A PARTY’S BREACH OF SECTION 6 OR 7.2, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, OR ANY LOST DATA, LOST PROFITS AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, ARISING FROM OR RELATING TO THE AGREEMENT, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.              Term and Termination.

9.1            Term. Unless earlier terminated pursuant to Section 9.2, the initial term of this Agreement will begin on the Effective Date and will continue for one year (“Initial Term”). Thereafter, this Agreement will automatically be extended for successive renewal terms of one year (each, a “Renewal Term”) unless either party gives written notice of non-renewal or conditions for renewal, at least 7 days before the expiration of the Initial Term or the then-current Renewal Term. The Initial Term and all Renewal Terms are collectively referred to as the “Term.”

9.2            Termination. A party may terminate this Agreement, effective immediately upon written notice to the other party, if such party breaches any provision of this Agreement and does not cure the breach within 3 days after receiving written notice thereof. Either party may terminate this Agreement for any reason upon 7 days prior written notice to the other party.

9.3            Effects of Termination. Upon termination by either party, (a) each party will immediately return all copies of the Information and all other property belonging to and/or received from the other party; (b) Referral Partner will promptly return to Contact Mapping or destroy any and all copies of Contact Mapping’s materials in its possession. Referral Partner will not be entitled to any compensation or indemnity (whether for loss of rights, goodwill or otherwise) as a result of the termination of this Agreement in accordance with its terms. Sections 1, 3.3, 6, 7, 8, 9.3 and 10 will survive expiration or termination of this Agreement for any reason.

10.            General.

10.1         Proprietary Rights. All Services and related documentation and material of Contact Mapping, and all worldwide Intellectual Property Rights therein, are the exclusive property of Contact Mapping and its suppliers. All rights in and to Services and Documentation not expressly granted to Referral Partner in this Agreement are reserved by Contact Mapping and its suppliers.

10.2         Press Releases. Within thirty days after the Effective Date, either party may, with the other party’s prior written consent, which shall not be unreasonably withheld, issue a press release announcing the relationship between the parties. Each party will have the opportunity to review and approve such announcement prior to its release by the other party.

10.3         Compliance with Laws. Services may be subject to export restrictions. Referral Partner will comply with all applicable export and import control laws and regulations in its use of Services and, in particular, Referral Partner will not export or re-export Services without all required government licenses and Referral Partner agrees to comply with the export laws, restrictions, national security controls and regulations of the all applicable foreign agencies or authorities.

10.4         Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement or any of its rights under the Agreement to any third party. Any attempted assignment or transfer in violation of the foregoing will be null and void. Notwithstanding the foregoing, Contact Mapping may assign this Agreement to any successor to its business or assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, reorganization or otherwise.

10.5         Force Majeure. Contact Mapping shall not be liable under this Agreement for failure or delay in the performance of its obligations arising from any cause which is beyond the reasonable control of Contact Mapping.

10.6         Notices. All notices, consents, and approvals under the Agreement must be delivered in writing by courier, by facsimile (fax), by confirmed email or by certified or registered mail (postage prepaid and return receipt requested), to the other party at the address set forth on the signature page of the Agreement, and will be effective upon receipt or three business days after being deposited in the mail as required above, whichever occurs sooner. Either party may change its address by giving notice of the new address to the other party.

10.7         Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado, without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement will be brought in the federal or state courts in Denver, Colorado, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If any legal action is brought by a party to enforce the Agreement, the prevailing party will be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

10.8         Remedies. Except as provided in Sections 7 and 8 the parties’ rights and remedies under the Agreement are cumulative. Referral Partner acknowledges that all Services contain valuable trade secrets and proprietary information of Contact Mapping, that any actual or threatened breach of Section 6 will constitute immediate, irreparable harm to Contact Mapping for which monetary damages would be an inadequate remedy, that injunctive relief is an appropriate remedy for such breach, and that if granted, Referral Partner agrees to waive any bond that would otherwise be required.

10.9         Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

10.10       Severability. If any provision of the Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

10.11       Entire Agreement. This Agreement (including the attachments and exhibits hereto) constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement will not be modified except by a subsequently dated written amendment signed on behalf of Contact Mapping and Referral Partner by their duly authorized representatives. Once signed, any reproduction of this Agreement, or any attachment or exhibit hereto, made by reliable means (for example, photocopy or facsimile) is considered an original and all software and services ordered under this Agreement will be subject to it.