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WHEREAS, Nanigans Inc. (we, us, Nanigans) is in the business of providing online social advertising automation software and related services to its clients (the “Services”);
WHEREAS, the “Referrer” desires to refer potential clients to Nanigans; and
WHEREAS, the parties desire to enter into a referral relationship under which Referrer shall refer potential clients to Nanigans in exchange for a Referral Fee (as defined below and provided herein).
NOW THEREFORE, in consideration of the foregoing and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1.1 “Referral” means a reasonably qualified and bona fide potential client or customer for Services, for which Referrer is directly responsible for soliciting and referring to Nanigans by submitting the Referral through the Referral Community page.
1.2 “Referral Date” means the date of transmission of a Referral by Referrer to Nanigans.
1.3 “Existing Client” means any client or customer (including parent companies and/or subsidiaries or other affiliates) to which Nanigans has furnished Services within the period of two (2) years prior to the applicable Referral Date of a Referral.
1.4 “Annual Contract” means a written agreement between Referral and Nanigans for Nanigans Services (i) that has been converted from the pilot period to a 12-month or more annual subscription or (ii) that is for a 12-month or more annual subscription without a pilot period.
2. Referral of Potential Clients or Customers by Referrer.
During the term of this Agreement, Referrer shall undertake commercially reasonable best efforts to send bona fide Referrals to Nanigans.
3.1 Acceptance. Nanigans may reject any Referral for (i) an Existing Client and (ii) for a company or potential client that Nanigans has previously marketed its Services to or has commenced communications (including e-mails or messages) concerning Nanigans Services.
3.2 Payment of Referral Fees & Eligibility. If, within two hundred and seventy (270) days of the applicable Referral Date, a Referral commences receiving Services under an Annual Contract (as defined above), then Referrer shall be entitled to receive a one-time fee (“Referral Fee”) in the amount of either:
(i) one thousand dollars USD ($1,000) on an Annual Contract with an annual advertising spend allotment under three million dollars USD ($3,000,000), or
(ii) three thousand dollars USD ($3,000), on an Annual Contract with an annual advertising spend allotment of more than three million dollars USD ($3,000,000), or
(iii) five thousand dollars USD ($5,000), on an Annual Contract with an annual advertising spend allotment of more than five million dollars USD ($5,000,000), or
(iv) seven thousand dollars USD ($7,000), on an Annual Contract with an annual advertising spend allotment of more than twelve million dollars USD ($12,000,000).
For avoidance of doubt, only one Referral Fee shall be paid per Referral, regardless of what the Referral’s eventual spend for Services is and regardless of whether the term of the Annual Contract is extended or Referral enters into additional Annual Contracts.
Eligibility for a Referral Fee will be dependent upon the determination by Nanigans in its sole and absolute discretion that, in addition to referring the Referral, the Referrer had a relevant role in the consummation of the Annual Contract with such Referral (i.e. merely transmitting the name of a referral may not be sufficient). Before any Referral Fee is paid by Nanigans, Nanigans must receive a completed IRS Form W-9 from the Referrer. Nanigans will pay the applicable Referral Fee, if any, to Referrer within sixty (60) days of the initiation of Services under the Annual Contract. Notwithstanding anything herein to the contrary, in no event shall Nanigans be obligated to pay a Referral Fee for any Referral involving an Existing Client or to which Nanigans has previously marketed its Services to or has commenced communications (including e-mails or messages) concerning Nanigans Services.
3.3 Limitations on Referral Fees. No Referral Fees to Certified Partners. Nanigans does not pay Referral Fees to Certified Partners.
(i) Prohibition on Improper Acts. Nanigans strictly prohibits Referrers from developing Referrals using illegal, unethical, or improper means. Without limiting the generality of the foregoing, Nanigans strictly prohibits bribery or a Referrer breaching any policies of a Referral covering payments to its employees or affiliates. Referrers may not promise, give, offer, or authorize the provision of money or anything of value to anyone to improperly influence the award or retention of business, including generating Referrals. Unless expressly approved in writing by a Referral, Nanigans will not pay a Referral Fee for a Referral submitted by a Referrer if the Referrer is an employee or a family member of an employee of the Referral.
(ii) Nanigans Employees. Employees of Nanigans who are not in a sales role may submit Referrals through the Referral Community and if the Referral enters into an Annual Contract, then pursuant to the timing set forth in Section 3.2, Referrer shall be entitled to receive a one-time fee of one thousand dollars USD ($1,000), regardless of the amount of spend or spend allotment.
3.4 Resolution of Conflicts Regarding Referral Fees. Nanigans shall not be liable for more than a single Referral Fee for each Referral (and all Referral’s affiliates). If more than one party should make a claim for any Referral Fee or part thereof, then the Referral Fee earned for Annual Contract shall be apportioned among the claimants for same as determined by Nanigans in its sole and absolute discretion. Nanigans shall make a reasonable effort to consult with all relevant parties regarding any apportionment. The decision of Nanigans regarding the apportionment of any Referral Fee due and payable hereunder shall be final.
3.5 Other Provisions concerning Referrers and Referrals. Unless expressly authorized in writing by Nanigans all Referrers must be natural persons.
4. Confidential Information.
4.1 Definition of Confidential Information. The parties anticipate that Nanigans may disclose Confidential Information to Referrer. For purposes hereof, “Confidential Information” means business or technical information disclosed by either party to the other party, including, without limitation, information relating to a party’s product plans, customers, designs, costs, products and services, pricing, finances, marketing plans, business opportunities, personnel, research and development, that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure, and is summarized in a writing sent by the disclosing party to the receiving party within thirty (30) days after any such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, the terms and conditions of this Agreement is the Confidential Information of both parties.
4.2 Confidentiality Obligations. Referrer will not use Nanigans Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party. Referrer will use all reasonable efforts to maintain the confidentiality of Nanigans Confidential Information in his, her or its possession or control, but in no event less than the efforts that Referrer ordinarily uses with respect to Referrer’s own confidential information of similar nature and importance. The foregoing obligations will not restrict Referrer from disclosing the Confidential Information or the terms and conditions of this Agreement: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that Referrer gives Nanigans reasonable notice to enable Nanigans to contest such order or requirement; (ii) on a confidential basis to Referrer’s legal or professional financial advisors; or (iii) as required under applicable securities regulations. The restrictions set forth in this Section 4 will remain in effect during the term of this Agreement and for a period of five (5) years after receipt of such Confidential Information.
4.3 Confidentiality Exclusions. The obligations set forth in Section 4 will not apply to any Confidential Information that: (i) is in or enters the public domain without breach of this Agreement by the receiving party; (ii) the receiving party lawfully receives from a third party without restriction on use or disclosure; (iii) the receiving party knew prior to receiving such information from the disclosing party without breach of a nondisclosure obligation, or (iv) the receiving party independently develops without reference to the other party’s Confidential Information.
5. Intellectual Property. As between the parties, Nanigans owns all right, title and interest (including all Intellectual Property Rights) in and to the Ad Platform and any software, technology, materials and information owned by Nanigans or created, authored, developed, conceived or reduced to practice after the Referral Date. Nothing herein shall be construed to transfer any rights, title or ownership of any Nanigans software, technology, materials, information or Intellectual Property Rights to Referrer. Referrer is not required to provide to Nanigans any ideas, feedback or suggestions relating to Nanigans’ products or services (“Feedback”). To the extent Referrer does provide any such Feedback, Referrer agrees to assign and hereby does assign all right, title and interest in and to such Feedback to Nanigans and acknowledges that Nanigans may freely use and exploit such Feedback without payment to Referrer.
6. No Exclusivity. This Agreement shall not be construed to be a commitment by either party to work exclusively with the other party regarding referrals of potential new business or any other business activities.
7. Representations and Warranties. Each party represents and warrants that: a. it will conduct business in a manner that reflects favorably on the other party and its products and services; b. it will make no false or misleading representations with respect to the other party and its products and services; and c. it will make no representations, warranties or guarantees with respect to the specifications, features or capabilities of the other party’s products and services that are inconsistent with the other party’s Marketing Materials. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 4 (CONFIDENTIAL INFORMATION) and 9 (INDEMNITY), TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
8. Indemnity. Referrer will indemnify, defend and hold Nanigans and its affiliates, and their respective officers, directors, employees, consultants and agents harmless from and against all damages, liabilities, costs, charges and expenses, including reasonable attorneys’ fees, awarded in a final judgment against or paid in settlement by Nanigans, arising out of or resulting from any third party claim based on a breach or alleged breach by Referrer of any representation or warranty specified in Section 7. Subject to Section 11, Nanigans will indemnify, defend and hold Referrer and its affiliates, and their respective, officers, directors, consultants and agents harmless from and against all damages, liabilities, costs, charges and expenses, including reasonable attorneys’ fees, awarded in a final judgment against or paid in settlement by Referrer arising out of or resulting from any third party claim relating to any breach or alleged breach by Nanigans of any representation or warranty specified in Section 7.
9. Indemnity Procedure. The party seeking indemnification and defense under Section 8, as the case may be (the “Indemnified Party”), will give prompt written notice of any claim to the other party (the “Indemnifying Party”). In addition, the Indemnified Party will allow the Indemnifying Party to direct the defense and settlement of any such claim, with counsel of the Indemnifying Party’s choosing, and will provide the Indemnifying Party, at the Indemnifying Party’s expense, with information and assistance that is reasonably necessary for the defense and settlement of the claim. The Indemnified Party reserves the right to retain counsel, at the Indemnified Party’s sole expense, to participate in the defense of any such claim. The Indemnifying Party may not settle any claim without the Indemnified Party’s prior written consent, if the settlement terms would adversely affect the Indemnified Party or its rights under this Agreement.
10. LIMITATION OF LIABILITY. NANIGANS TOTAL CUMULATIVE LIABILITY FOR DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE REFERRAL FEES PAYABLE BY NANIGANS HEREUNDER. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, OF ANY CHARACTER, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY CAUSING THE DAMAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.1 Termination. Nanigans may at any time terminate, suspend or amend this Agreement, these Terms & Conditions at any time without notice to any Referrer. Nanigans encourages Referrers to periodically review this page for the latest information on and any changes to Nanigans Referral Program.
11.2 Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in Boston, Massachusetts. All Referrers hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
11.3 Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.
11.4 Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
11.5 Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.
11.6 Compliance with Laws. Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.
11.7 Relationship between the Parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.
11.8 Assignment. Neither party may assign this Agreement without prior written consent unless in connection with a merger, acquisition, or sale of all or substantially all of its assets, and provided that the surviving entity has agreed to be bound by this Agreement.
11.9 Entire Agreement. This Agreement together with the exhibits hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. Any modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties.
11.10 Equitable Relief. Referrer acknowledges that a breach of any confidentiality or proprietary rights provision of this Agreement may cause Nanigans irreparable damage, for which the award of damages would not be adequate compensation. Consequently, Nanigans may institute an action to enjoin the breaching party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.
11.11 No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.
11.12 Independent Contractors. The relationship of Nanigans and Referrer shall be and shall at all times remain that of independent contractors and not that of employer and employee, franchisor and franchisee, joint ventures or partners. This Agreement does not establish either party as the other party’s agent or representative for any purpose. Neither party shall have any authority of any kind to bind the other party in any respect whatsoever. Without limiting the generality of the preceding sentence, neither party is authorized to accept orders or to enter into contracts or any obligation in the other party’s name, or to transact any business on behalf of the other party.
11.13 Counterparts. This Agreement may be executed in counterparts, each of shall constitute an original, and all of which shall constitute one and the same instrument.
11.14 Headings. The headings in this Agreement are for the convenience of reference only and have no legal effect.
11.15 Notices. Nanigans may give notice to Referrer by e-mail to Referrer’s e-mail address on record in Nanigans account information. Referrer may give notice to Nanigans by sending an e-mail to firstname.lastname@example.org.