Everflow Referral Program Agreement

This Referral Agreement is between you, hereinafter referred to as “Referrer” and Everflow Technologies Inc. (“Everflow”) (each a “Party” and collectively “Parties”). Based on the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

1) Definitions. The following definitions shall apply to this Agreement:

1. “Commission” means, for each Lead, the amount determined by multiplying 10% by the Referral Revenue.
2. “Everflow Platform” means Everflow’s cloud platform that facilitates the Platform Services (as defined herein).
3. “Lead” means any natural person, corporation, partnership, limited liability company, trust, association or other entity, as to which Everflow had no prior or pre-existing relationship as a strategic partner, prospect or customer, either directly or indirectly through another referral party, reseller, sales and marketing agent or other strategic partner within the twelve (12) month period preceding the Lead Acceptance Date (as defined below), that Referrer refers to Everflow.
4. "Master Agreement" means the written agreement (and related order forms) under which Everflow agrees to render Platform Services, signed by the subject Lead within nine (9) months of the Lead Acceptance Date (as defined herein).
5. "Platform Services" means the web-based advertising network, affiliate tracking, targeting, reporting and analytics services included in the services, and underlying Everflow Platform, supplied by Everflow, as defined in the Master Agreement.
6. “Referrer Discount” means a discount of 10% applied to fees charged to Referrer by Everflow for Platform Services rendered to Referrer.
7. “Referral Revenue” means the revenue Everflow actually receives under a Master Agreement for Platform Services rendered to the Lead during the first twelve (12) months commencing on the effective date of the Master Agreement (“Referral Period”), and invoiced monthly in arrears.
   

2) Referral Program. This non-exclusive Referral Program allows Referrer to refer Leads to Everflow and receive (i) a Commission, or (ii) if Referrer is a customer of Everflow, a Referrer Discount, subject to the following terms:

a. Referral Email. For each Lead that Referrer refers to Everflow Referrer must send an email to ed@everflow.io (“Referral Email”) with the following information; the date of such Referral Email shall constitute the “Referral Date.”

1. organizational name;
2. physical address;
3. contact person(s) name, title, phone number, and email address; and
4. Referrer’s relationship to the Lead.

b. Acceptance. Everflow shall respond to the Referral Email by either accepting or declining the Lead, via email (“Lead Response”). If Everflow accepts the Lead, the date of such Lead Response shall constitute the “Lead Acceptance Date.” Everflow may, in its sole discretion, reject a Lead for any reason, including but not limited to: Everflow has been or is already engaged with the Lead. If Everflow does not respond to the Referral Email within three (3) months of the Referral Date, the Lead shall be deemed a rejection, in which case, Referrer may resubmit the subject Lead. Referrer shall be responsible for confirming if Everflow receives a Referral Email.

c. Introduction. Once Everflow approves the Lead, Referrer shall provide Everflow with any other information or support as reasonably requested by Everflow, to the extent possible, including without limitation, a warm introduction (via e-mail, phone conference call and/or an in-person meeting) with a representative of the Lead who has the authority to decide whether to procure the Platform Services.

d. Everflow may, in its sole discretion, refuse to enter into a fully executed Master Agreement with a Lead for any reason.

e. If Everflow receives conflicting or multiple referrals of the same Lead, Everflow in its sole discretion will determine to whom and how to allocate any Commission for such Lead.

3) Compensation.

a. Everflow in its sole discretion shall determine if Referrer receives a Commission and/or Referrer Discount (as defined herein).

b. Commission. In the case that Everflow decides to pay Referrer a Commission, the following terms shall apply:

1. Referral Revenue shall be calculated by Everflow in its sole discretion. Referrer understands and agrees that the amounts paid by the Lead to Everflow, and the amounts paid by Everflow to its banking/financial service providers, sales commissions, and taxes are also confidential information and Referrer shall not be entitled to audit these records.
2. Everflow shall pay the Commission in arrears, on a monthly basis. Everflow shall pay the Commission within forty-five (45) days of actually receiving the corresponding Referral Revenue from the Lead. For clarification, Everflow shall invoice Leads, in arrears on net thirty (30) day terms, in accordance with its standard process.
3. Referrer will be eligible to receive the Commission only if Referrer is not in default under any agreement with Everflow, its parent, or its affiliates; and  Everflow has not terminated this Agreement for cause. In the event that Everflow terminates this Agreement for cause, Everflow shall stop paying Referrer the Commission at the time of termination.

c. Referrer Discount. In the case that Everflow decides to provide Referrer with a Referrer Discount, the following terms shall apply:

1. Referrer shall receive the Referrer Discount on fees charged to Referrer by Everflow for Platform Services rendered to Referrer during the Referral Period, contingent upon Everflow actually receiving corresponding Referral Revenue. For clarification, Everflow shall invoice Leads, in arrears on net thirty (30) day terms, in accordance with its standard process.
2. Referrer will be eligible to receive the Referrer Discount only if Referrer is not in default under any agreement with Everflow, its parent, or its affiliates; and Everflow has not terminated this Agreement for cause. In the event that Everflow terminates this Agreement for cause, the Referrer Discount shall end at the time of termination.

4) Marketing. Referrer agrees to market Everflow and the Platform Services truthfully, positively and accurately. Referrer agrees to comply with Everflow branding or marketing requirements or guidelines as may be communicated to Referrer, in regards to Referrer’s marketing of Everflow and the Platform Services. Related marketing activities must comply with applicable laws, regulations, industry standards and best practices. Everflow may, at any time, require Referrer to refrain from submitting Leads and representing that Referrer is an Everflow referral partner by providing prior written notice, effective immediately.

5) Non-Solicitation. Referrer agrees that during the Term of this Agreement, and for the 12-month period following the termination of this Agreement, that Referrer will not will directly or indirectly call on, solicit, take away, or attempt to call on, solicit, or take away any Everflow customers, whether or not they were Leads.  

6) Term.

a. This Agreement shall commence upon the Effective Date and continue for a term of twelve (12) months (“Term”).  Either Party may terminate this Agreement at any time on account of a material breach of the Agreement by the other party that is not cured within 5 business days of the non-breaching party’s written notice to the breaching party. In addition, either Party may terminate this Agreement at any time for convenience and without cause, on thirty (30) days written notice to the other Party.  

b. Upon termination or expiration of this Agreement for any reason, other than termination for cause (in accordance with Section 3), the payment of the Commission and/or application of Referrer Discount shall continue as if the Agreement had not terminated or expired.

7) Confidential Information. Each Party acknowledges that it may directly or indirectly disclose Confidential Information to the other Party in the course of negotiation of and performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each Party agrees to treat such Confidential Information with the same degree of care and security as it treats its most confidential information. Each Party may disclose such Confidential Information to employees and agents who require such knowledge to perform services under this Agreement. Except as otherwise contemplated by this Agreement, neither Party shall disclose the Confidential Information of the other Party to any third party without the prior written consent of the disclosing party, and the duty of confidentiality created by this Section shall survive any termination of the Agreement. For the purposes of this Agreement, “Confidential Information” means all proprietary, secret or confidential information or data relating to either party and its affiliates, operations, employees, products or services, clients, customers or potential customers. Confidential Information shall include customer lists, cardholder account numbers, pricing information, computer access codes, instruction and/or procedural manuals, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free of any restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of any restriction and without breach of this Agreement; (iii) or becomes publicly available through no wrongful act of the receiving party; (iv) independently developed by the receiving party without reference to any Confidential Information of the other; or (v) required to be disclosed by law. Without limiting the foregoing, information relating to this Agreement, Platform Services and Master Agreements with Leads shall be the exclusive property and Confidential Information of Everflow.

8) Intellectual Property. Everflow owns or is the authorized licensor of all right, title and interest in and to all parts of the Platform Services, including all intellectual property rights therein. Referrer shall take no position contrary to, or that would diminish, the ownership rights set forth herein. Referrer shall reasonably assist Everflow, at Everflow’s expense (except to the extent caused by a breach of this Agreement by Referrer), in enforcing and protecting its rights in the Platform Services. Except for the rights and licenses provided in this Agreement, neither Party shall acquire any right, license or interest in the intellectual property of the other Party by virtue of entering into this Agreement.

9) Relationship of Parties. Both parties are independent contractors and this non-exclusive Agreement is not intended to create, nor does it create and shall not be construed to create, a relationship of partnership, joint venture, employment, agency or any association for profit between Everflow and Referrer. Nothing in this Agreement or the Parties’ relationship shall be construed to give either Party the power to direct and control the day-to-day activities of the other. Neither Party is authorized to represent itself to be an employee or agent of the other, or to inform or represent to any person or entity that it has authority to bind or obligate the other or to otherwise act on behalf of the other. Neither Party shall make any representation or warranty, or create any liability or potential liability on behalf of the other. All expenses incurred by Referrer in connection with this Agreement shall be borne solely by Referrer, and Everflow shall not be in any way responsible or liable therefore. Referrer shall be fully responsible for all tax obligations related to amounts received hereunder.

10) Indemnification. Referrer agrees to indemnify, defend and hold harmless Everflow, and its parents, subsidiaries, agents, affiliates, employees, directors and officers, from any and all liability, claim, loss, damage, demand or expense (including reasonable attorneys’ fees) asserted by any third party due to, arising from, or in connection with any material breach by Referrer of the terms of this Agreement or violation of applicable laws or regulations.

11) Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, THE PLATFORM SERVICES ARE PROVIDED “AS IS” AND EVERFLOW EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. EVERFLOW DOES NOT WARRANT THAT THE PLATFORM SERVICES WILL MEET ANY PARTY’S REQUIREMENTS OR THAT THE OPERATION OF THE PLATFORM SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. EVERFLOW SHALL NOT BE LIABLE TO ANY PARTY FOR ANY INOPERABILITY OF THE PLATFORM SERVICES OR ERRORS PRODUCED BY THE PLATFORM SERVICES.

12) Limitation of Liability. EXCEPT IN CONNECTION WITH OBLIGATIONS UNDER SECTION 10 (INDEMNIFICATION), A BREACH OF SECTION 7 (CONFIDENTIALITY), VIOLATION OF INTELLECTUAL PROPERTY RIGHTS, FEES DUE HEREUNDER OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, BUSINESS OR PROFITS, OR COSTS OF COVER) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND (B) EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION, WILL BE LIMITED TO THE AMOUNT FEES PAID PURSUANT TO THIS AGREEMENT DURING THE MOST RECENT TWELVE (12) MONTH PERIOD.

13) Representations and Warranties. Each Party represents and warrants to the other Party that:

• it has all necessary right, power and authority to enter into this Agreement and to perform its obligations hereunder;
• the execution and delivery of this Agreement, and the performance of its obligations hereunder, do not conflict with and will not result in a breach of any other agreements to which it is a Party or by which its assets are bound;
• it shall perform under this Agreement in compliance with applicable laws and regulations; and
• this Agreement constitutes the legally valid and binding obligation of such party enforceable against it in accordance with its terms, except as such enforcement may be limited by applicable law or equitable principles.

14) Miscellaneous. If any provision of this Agreement is held to be void, invalid or inoperative, the remaining provisions of this Agreement shall continue in effect and the invalid portion of any provision shall be deemed modified to the least degree necessary to remedy such invalidity while retaining the original intent of the parties. The failure of either party to partially or fully exercise any rights or the waiver of either party of any breach, shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of this Agreement. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless expressly provided otherwise in this Agreement.

15) Assignment. Neither Party may assign this Agreement to any other entity without the prior written consent of the other, whether by operation of law or otherwise, except pursuant to a merger or sale of all or substantially all the assets of such party or the business unit of such party that provides the services referred to herein. This Agreement shall inure to the benefit of the Parties’ permitted successors and assigns.

16) Survival. Sections 5 to 14 and such other provisions that by their nature are intended to survive termination or expiration, shall survive termination or expiration of this Agreement.

17) Governing Law. This Agreement shall be governed by both the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties irrevocably consent to the personal jurisdiction and venue therein.

18) Notice. All notices to be given pursuant to this Agreement will be in writing sent to the physical address of the receiving party or by e-mail.  Notice will be effective upon receipt (or refusal of delivery), where receipt of a e-mail occurs when the receiving party acknowledges receipt of such e-mail by a non-automated reply e-mail.

19) Entire Agreement. This Agreement contains the entire agreement and understanding among the Parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, understandings, inducements and conditions, express or implied, oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement may be modified only by a separate written document signed by both parties.

THE PERSON CLICKING-THROUGH THIS AGREEMENT REPRESENTS AND WARRANTS THAT SUCH INDIVIDUAL IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON BEHALF OF REFERRER.  SUCH INDIVIDUAL MUST INDEMNIFY, DEFEND AND HOLD EVERFLOW HARMLESS IN THE EVENT THAT REFERRER DID NOT SO AUTHORIZE.

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