ZipDX Referral Partner Agreement
This REFERRAL PARTNER AGREEMENT ("Agreement") is made and entered into by and between ZipDX LLC, a California company ("ZipDX"), with its principal place of business located at 16785 Magneson Loop, Los Gatos, California 95032, and ("Referral Partner") (collectively the "Parties"). By entering into this Agreement, ZipDX and Referral Partner hereby agree that any prior agreement(s) entered into by and between the Parties are hereby terminated and superseded by this Agreement.
1. DEFINITIONS.
1.1. "End-User" shall mean an individual user whether it be a single consumer user or a designated user of a business entity or corporation which is authorized to access and use the ZipDX Services pursuant to the ZipDX standard terms and conditions of use.
1.2. "ZipDX Marks" shall mean .ZipDX. and any additional trademark, trade name, logo and service mark expressly provided to Referral Partner by ZipDX for use pursuant to this Agreement.
1.3. "ZipDX Services" shall mean the ZipDX proprietary technology enabling ZipDX to deliver audio collaboration services and support for consumers and businesses as described in detail on Exhibit A hereto.
1.4. "Customer" shall mean an individual, business entity or corporation which as a result of Referral Partner's performance of its duties under this Agreement, such individual, business entity or corporation has entered into an agreement with ZipDX for access to and use of the ZipDX Services. Each Customer will have one or more End Users.
1.5. "Trial Offer" shall mean a one time right for a potential customer to use and access the ZipDX Services on a no charge/no fee basis for a term to be determined in a Trial and/or Master Sales Agreement between the potential customer and ZipDX.
2. RIGHTS AND OBLIGATIONS OF REFERRAL PARTNER.
2.1. Referral Partner Rights. ZipDX appoints Referral Partner to market and/or promote the ZipDX Services on the terms and subject to the conditions identified in this Agreement. ZipDX Services as used herein mean those ZipDX Services that ZipDX has chosen to make available hereunder in its sole discretion. In no event is ZipDX Referral Partner authorized to distribute ZipDX Services for resale.
2.2. Referral Partner Obligations. Referral Partner will generate sales of ZipDX Services in a manner that will reflect favorably on the good name and reputation of ZipDX and ZipDX Services, and specifically, Referral Partner agrees to:
2.2.1 Not make any representation concerning the ZipDX Services or the rights granted hereunder which is contrary to any term or condition set forth in ZipDX's standard terms and conditions of use of the ZipDX Services;
2.2.2 Comply with all applicable national, international, state and local laws, ordinances and regulations in its dealings with ZipDX and Customers;
2.2.3 Observe the highest standards of integrity and fair dealing with the public.
2.3. Customer Information. Referral Partner will maintain records of all its Customer referrals. ZipDX shall maintain records of all customer information delivered by Referral Partner to ZipDX as a result of Referral Partner's performance pursuant to this Agreement. Such records maintained by Referral Partner and ZipDX shall be referred to collectively as "Customer Information." All Customer Information shall be jointly owned by Referral Partner and ZipDX and, pursuant to such ownership, may be used by either party in any manner deemed appropriate subject to (i) the published privacy policies of either party then in effect, (ii) Section 2.4 following, and (iii) all privacy and data protection laws and regulations applicable to the gathering, storage and transmission of the Customer Information.
2.4 During the term of this Agreement and for a period of eighteen (18) months thereafter, Referral Partner agrees not to reveal, divulge, make known, sell, exchange, lease or in any other way transfer any Customer Information to any third party or to utilize such Customer Information in direct or indirect competition with ZipDX or any of its other Referral Partners. Referral Partner agrees that monetary damages for breach of its obligations under this Section may not be adequate and that ZipDX will be entitled to injunctive relief with respect to any breach or default of Referrer's obligations under this Section.
2.5. ZipDX's Ownership. All rights not expressly granted herein are reserved by ZipDX.
2.6. Expenses. Referral Partner will be solely responsible for its own expenses, and those of its staff, including, but not limited to, staff salaries during any installation or training and all expenses incurred in the promotion, demonstration, installation, or marketing of the ZipDX Services.
3. RIGHTS AND OBLIGATIONS OF ZIPDX.
ZipDX shall have the exclusive right to determine fees and other terms and conditions in connection with the marketing and promotion of the ZipDX Services to Customers identified by Referral Partner pursuant to this Agreement. Fees, terms, conditions, features, and other aspects of ZipDX Services will be subject to change from time to time at the sole discretion of ZipDX. Delivery of the ZipDX Services shall be conditioned on each Customer agreeing, by means of a "click-thru" or direct services agreement whereby Customer is bound by ZipDX's standard terms and conditions of use of the ZipDX Services. ZipDX will have no liability to Referral Partner should ZipDX fail to provide, or decide to discontinue, any or all Services.
4. FEES.
4.1. ZipDX Fees. ZipDX shall invoice Customers and shall be entitled to retain all fees collected from Customer associated with the use of the ZipDX Services.
4.2. Referral Partner Referral Fees. ZipDX shall pay Referral Partner a referral fee based on the schedule set forth in Exhibit A attached hereto.
5. TRADEMARKS.
During the Term of this Agreement, ZipDX and Referral Partner shall have the right to identify Referral Partner as a ZipDX "Referral Partner". Referral Partner shall obtain ZipDX's written approval prior to the commencement of any other use of a ZipDX trademark, service mark or trade name. Referral Partner shall not register or apply for registration of any trademark, service mark, business name, company name or trade name, which is identical or similar in whole or in part to any mark, or name belonging to ZipDX. ZipDX agrees that it will do all things necessary, including without limitations executing any documentation to effect the transfer of any such trade mark, service mark, business name, company name or trade name to ZipDX. Except as expressly granted herein, no license regarding the use of ZipDX's copyrights, patents, trademarks or trade names is granted or will be implied.
6. CONFIDENTIALITY.
6.1 Confidentiality. Each party expressly agrees to retain in confidence the terms and conditions of the Agreement and all information transmitted to the other that the disclosing party has identified in writing as confidential. Either party may disclose confidential information as required by governmental or judicial order, provided such party gives the other party prompt written notice prior to such disclosure and complies with any protective order (or equivalent) imposed on such disclosure. Neither party shall have an obligation to maintain the confidentiality of information that (i) it received rightfully from a third party prior to its disclosing to the receiving party; (ii) the disclosing party has disclosed to a third party without any obligation to maintain such information in confidence; or (iii) is independently developed by the obligated party. Each party's obligation under this Section 6.1 shall survive the expiration or earlier termination of this Agreement and shall extend to the earlier of such time as the information protected hereby falls into the public domain through no fault of the obligated party or three (3) years following termination or expiration of this Agreement.
6.2 Injunctive Relief. Each party acknowledges that all of the disclosing party's Confidential Information is owned solely by the disclosing party (or its licensors) and that the unauthorized disclosure or use of such Confidential Information would cause irreparable harm and significant injury to the disclosing party, the degree of which may be difficult to ascertain. Accordingly, each party agrees that the disclosing party will have the right to obtain an immediate injunction enjoining any breach of this Agreement, as well as the right to pursue any and all other rights and remedies available at law or in equity in the event of such a breach.
7. WARRANTIES/LIMITED WARRANTY.
ZipDX warrants ZipDX Services to End Users under the terms set out in the sales agreements applicable to such products and services. THESE LIMITED WARRANTIES ARE THE EXCLUSIVE WARRANTY IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED, IMPLIED OR STATUROY, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND AGAINST INFRINGEMENT AND OF ALL OTHER OBLIGATIONS, CONDITIONS, OR LIABILITIES ON ZIPDX'S PART EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW. ZIPDX'S SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR DISTRIBUTION OR USE WITH ANY EQUIPMENT THE FAILURE OF WHICH COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
8. INDEMNIFICATION.
Referral Partner shall defend, indemnify, and hold harmless ZipDX from and against all liabilities, claims, costs, fines, and damages of any type (including attorney's fees) arising out of or in any way related to the Referral Partner's breach of this Agreement.
9. TERM AND TERMINATION.
9.1. Term. This Agreement shall take effect on the date of execution by Referral Partner entered online and acceptance by ZipDX, ("Effective Date"). Unless earlier terminated pursuant to the terms of this Agreement, the initial term of this Agreement shall be for a period from the Effective Date through December 31st of the year of the Effective Date ("Initial Term"). Thereafter, this agreement will automatically renew on an annual basis for the period from January 1 to December 31st of each subsequent year, unless earlier terminated pursuant to the terms of this Agreement.
9.2. Termination. Either party may terminate this Agreement for any or no reason upon thirty (30) days prior written notice provided this Agreement may be terminated immediately upon a breach of Section 6 ("Confidentiality"). Both parties agree the opportunities presented by this Agreement constitute adequate consideration for such a termination right. In the event either party terminates this Agreement, termination shall not affect the other party's financial obligation to make any required payments hereunder, except that financial obligations of ZipDX will cease if the Agreement is terminated due to breach by Referral Partner. Each party shall be responsible for their own expenses relating to termination.
9.3. Effect of Termination; Transition.
9.3.1. Referral Partner agrees that in case of termination of this Agreement under this Section 9, all rights and obligations of Referral Partner to market and promote the ZipDX Services will cease on the effective date of such termination. Referral Partner will destroy or return all copies of ZipDX's Confidential Information in its possession upon the termination of this Agreement.
9.3.2. The termination of this Agreement shall have no effect on the term of any agreement between ZipDX and a Customer in effect at of the time of termination of this Agreement.
9.4. Survival. The obligations under Sections 1, 2.4, 4, 5, 6, 7, 8, 9.3, 10 and 11 survive any expiration or termination of this Agreement.
10. LIMITATION OF LIABILITY.
SUBJECT TO APPLICABLE LAW, NEITHER ZIPDX NOR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE CREATION, PRODUCTION, OR DELIVERY OF THE ZIPDX SERVICES THAT ARE THE SUBJECT OF THIS AGREEMENT SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, AND THE LIKE) ARISING OUT OF THE USE OF OR INABLITY TO USE ZIPDX'S SERVICES, OR PROVISION OF, OR FAILURE TO PROVIDE, SUPPORT, EVEN IF ZIPDX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Because some jurisdictions do not allow the exclusion or limitation of consequential or incidental damages, the above limitation may not apply. In any event, except as otherwise provided by law, the liability of ZipDX, whether for negligence, breach of contract, breach of warranty, or otherwise, shall, in the aggregate, not exceed the amount of the payments made hereunder to Referral Partner with respect to the ZipDX Services prior to such claim.
11. GENERAL.
11.1. Assignment. Referral Partner may not assign or transfer its rights or obligations under this Agreement without the prior written permission of ZipDX. Any other attempt to transfer, sublicense or assign any of the rights or duties hereunder in violation of this Section 11.1 is hereby prohibited and shall be null and void. Subject to the foregoing, the Agreement shall inure to the benefit of and be binding upon the parties and their permitted successors and assigns.
11.2. Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of California and in any dispute arising out of this Agreement, Referral Partner consents to the exclusive personal jurisdiction and venue in the State and California courts within Santa Clara County, California. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be to that extent deemed omitted and the remaining provisions will continue in full force and effect. To the extent a provision is deemed omitted, the parties agree to comply with the remaining terms of this agreement in a manner consistent with the original intent of the Agreement.
11.3. Non-waiver. The failure of any party to enforce at any time any of the provisions hereof will not be construed to be a waiver of the right of such party thereafter to enforce any such provision.
11.4. Modification. This Agreement may be modified only by a writing signed by each party.
11.5. Notices. Notices under this Agreement will be sufficient if hand delivered, delivered by facsimile with acknowledgment of good transmission, emailed to the designated email addresses for the parties, or if mailed via overnight courier, return receipt requested to the parties at their respective addresses first set forth on the signature page of this Agreement or as amended by notice pursuant to this Section 11.5. Facsimile copies and overnight deliveries will be proper notice as of the date the party giving notice receives written confirmation from the other party or courier that such notice has been received, provided that originally signed copies will be handled as above.
11.6. Entire Agreement. This Agreement supersedes all proposals, oral or written, all negotiations, conversations or discussions between or among the parties relating to the subject matter of this Agreement and all past dealing or industry customs. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument.
11.7. Force Majeure. Neither party shall be liable to the other party for non-performance of its obligations hereunder to the extent that such failure to perform is rendered by Force Majeure, but only for so long as such conditions persist.
11.8. Independent Contractor. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, franchise or agency relationship between the parties. Referral Partner agrees that it shall inform its customers that it is an independent business from ZipDX, and shall not hold itself out as an employee of ZipDX, or attempt to bind ZipDX to any third-party agreement.
11.9. Attorney's Fees. In the event of any legal proceeding between the parties arising from this Agreement the prevailing party will be entitled to recover, in addition to any other relief awarded or granted, its reasonable costs and expenses (including court costs and reasonable fees for attorneys, accountants and expert witnesses) incurred in the proceeding.
11.10. Press Release. Neither party may issue press releases regarding this Agreement or the relationship described herein without the prior written approval of the other party. Notwithstanding the foregoing, ZipDX may use Referral Partner's marks on its website, subject to Referral Partner's reasonable approval.
11.11. Data Protection. Referral Partner agrees to process personal data which it receives from ZipDX, ZipDX's subsidiaries or business partners in accordance with applicable data protection and privacy laws.
Exhibit A
To the ZipDX Referral Partner Agreement
1. Defined Terms
1.1 ZipDX Services: shall mean any or all of the elements of ZipDX.s audio collaboration service offerings, including wideband conference calling and point-to-point calling, as well as ancillary services such as recording, playback, and screen-sharing.
1.2 Customer: shall mean an end-user of ZipDX Services with a corresponding ZipDX account.
1.3 Net Revenue: shall mean gross revenue actually collected by ZipDX from a Customer for ZipDX Services actually provided, exclusive of prepayments and net of any refunds, chargebacks, credits or taxes paid by ZipDX.
1.4 Referred Customer: shall mean a Customer who opens a ZipDX account for ZipDX Services at the ZipDX Web site and enters information allowing ZipDX to link that account to the Referral Partner. Existing ZipDX customers are not eligible as Referred Customers; nor are Customers already registered by this or any other Referral Partner. Referral Partner is solely responsible for insuring that Customer enters the appropriate referral information when the account is established.
2. Referral Partner Referral Fee. ZipDX will pay referral fees as follows:
2.1 For Net Revenue received by ZipDX for any ZipDX Service(s) from a Referred Customer, ZipDX shall pay to corresponding Referral Partner a referral fee based on cumulative Net Revenue according to the following schedule:
Referral Fee, as a Monthly Billing Cycle % of Net Revenue First, Second and Third 25% Fourth through Twelfth 5% Beyond Month 12 5%, provided this agreement has not been terminated
2.2 ZipDX will not pay more than one Referral Fee for any given Customer. ZipDX reserves the right to apportion, in its sole discretion, the Referral Fee associated with Net Revenue from a given Customer if it determines that more than one Referral Partner has contributed to the close of that Customer.
2.3 Payment of Quarterly Referral Fee will be made to Referral Partner directly from ZipDX via electronic funds transfer within fifteen (15) days of the end of each calendar quarter.
2.4 Notwithstanding anything to the contrary herein, ZipDX shall not be required to make any payment under this Agreement until such time as the then aggregate amount payable to Referral Partner is fifty dollars ($50) or more, except in the event of termination under Section 9 of the Agreement.
