Beefree REFERRAL AGREEMENT

This Beefree REFERRAL AGREEMENT (“Agreement”) is between BEE Content Design, Inc., a Delaware corporation (“BCD”), acting for and on behalf of itself and each of its Affiliates, and you or your company, organization, or entity (“You” or “Referral”).

(BCD and the Referral are, each, a “Party” and, collectively, the “Parties” to this Agreement).

BY CLICKING THE "I ACCEPT" OR “CONFIRM” BUTTON BELOW, OR BY PRINTING AND SIGNING THIS AGREEMENT WHERE INDICATED BELOW, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF AND BE A PARTY TO THIS AGREEMENT. YOU WARRANT THAT YOU ARE AT LEAST EIGHTEEN YEARS OLD AND THAT YOU HAVE THE LEGAL CAPACITY TO ENTER INTO CONTRACTS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY, ORGANIZATION, OR OTHER ENTITY, THEN (A) “YOU” OR “REFERRAL” INCLUDES YOU AND THAT ENTITY, AND (B) YOU REPRESENT AND WARRANT THAT YOU ARE AN AUTHORIZED REPRESENTATIVE OF THE ENTITY WITH THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, AND THAT YOU AGREE TO THIS AGREEMENT ON THE ENTITY’S BEHALF. ANY SIGNATURE (INCLUDING ANY ELECTRONIC SYMBOL OR PROCESS ATTACHED TO, OR ASSOCIATED WITH, A CONTRACT OR OTHER RECORD AND ADOPTED BY YOU WITH THE INTENT TO SIGN, AUTHENTICATE OR ACCEPT SUCH CONTRACT OR RECORD) HERETO OR TO ANY OTHER CERTIFICATE, AGREEMENT OR DOCUMENT RELATED TO THIS TRANSACTION, AND ANY CONTRACT FORMATION OR RECORD-KEEPING THROUGH ELECTRONIC MEANS SHALL HAVE THE SAME LEGAL VALIDITY AND ENFORCEABILITY AS A MANUALLY EXECUTED SIGNATURE OR USE OF A PAPER-BASED RECORDKEEPING SYSTEM TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND THE PARTIES HEREBY WAIVE ANY OBJECTION TO THE CONTRARY.

WHEREAS

I. BCD is a company specialized in the digital marketing and digital communications sector and it has developed Beefree, an online editor to create email messages, landing pages, and other documents using a drag-&-drop user interface (including modifications, enhancements, improvements, updates, additions, derivative works, object code compiled therefrom, documentation and related material, the “Software”).

II. Referral and BCD each desire that Referral promote the Software to potential Customers (as defined below) and refer such Customers to BCD for a referral commission, in accordance with the terms of this Agreement.

NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND AGREEMENTS CONTAINED HEREIN, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY EXPRESSLY ACKNOWLEDGED, THE PARTIES, INTENDING TO BE LEGALLY BOUND, AGREE AS FOLLOWS:

1. RECITALS, SCHEDULE, AND EXTERNAL LINKS

1.1. The recitals, the schedules and the external links to this Agreement constitute an integral and substantive part hereof.

 

2. DEFINITIONS

2.1. As used in this Agreement and any amendments or exhibits therein, each capitalized term will have the meaning and definition specified below:

“Agreement” means this BCD Pro Referral Agreement.

“Referral Commission” has the meaning as defined in Section 5.2.

“BCD Marketing Materials” means marketing materials developed by or for the benefit of BCD and used to market and promote the Software. BCD may modify or alter BCD Marketing Materials at any time in its sole discretion, with or without notice to Referral.

“BCD Trademarks” means the BCD verbal and design trademark, the Beefree and Beefree App verbal and design trademark and derivatives thereof, as well as any other trademarks, service marks, logos, insignias, trade dress, brand assets and branded terms, and other designations proprietary to BCD. BCD is a registered trademark.

“Confidential Information” has the meaning as defined in Section 7.1.

“Customer” means an end-user referred by Referral who acquires rights to use (but not resell) the Software and agrees to a Subscription Plan (as defined in BCD’s Terms of Service) for the Software. The Referral and any Affiliates of Referral will not be included as Customers.

"Derivative Work" means any work which uses, is based on, or incorporates the Software or any part thereof, including, without limitation, translations, adaptations, condensations, improvements, updates, enhancements, or any other form in which the Software or any part thereof may be recast, transformed, adapted, or revised.

“Intellectual Property” means all current and future worldwide copyright, patents, utility models industrial designs, trademarks, domain names, database right and other intellectual property rights, whether or not capable of registration, whether or not registered, and applications of any of the foregoing and all intellectual property rights whether now known or created in the future.

“Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

“Net Subscription Fees” means the aggregate amount of the revenues generated by the Customer within the first twelve (12)-month period (or such other period as may be determined by BCD from time to time), starting from the date of Customer’s Subscription, actually received by BCD from Customer, less any refunds to any such Customer for Subscription cancellation or reduction, and applicable taxes, if any.

“Person” means an individual, corporation, partnership, limited liability company, or other entity.

“Software” has the meaning defined in Recital I. BCD may modify, alter, or include additional software applications to the Software at any time in its sole discretion, with or without notice.

“Term” means the period of time described in Section 6.1.

“Terms of Service” means the terms applicable to any license of BCD Software generating a Subscription, available at https://beefree.io/terms-of-service/, which are incorporated by this reference into this Agreement.

“Subscription” means the specific Software subscription plan subscribed to by the Customer with respect to the Software, as available at https://beefree.io/plans-pricing

 

3. LICENSE GRANTS; OWNERSHIP

3.1. License Grants.

3.1.1. License. Subject to Referral’s compliance with all terms of this Agreement, BCD hereby grants to Referral a revocable, non-transferable, non-sublicensable, non-assignable, worldwide, non-exclusive license during the Term (i) to market, promote, display, and demonstrate the Software, and (ii) to use, reproduce, and display the Marketing Materials, in either case solely for the purpose of promoting the Software to Customers and potential Customers. BCD grants no rights under this Agreement to Referral to sublicense, resell, use, disclose or otherwise distribute or provide the Software to Customers or third parties or for subsequent sublicensing, resale, or other distribution to end users or other distributors, unless approved by BCD.

3.1.2. BCD Trademark License. Subject to such written guidelines as may be periodically provided by BCD to Referral, BCD hereby grants to Referral a revocable, non-transferable, worldwide, non-exclusive license during the Term to use the BCD Trademarks solely for the purpose of promoting the Software to Customers or potential Customers. All goodwill associated with such BCD Trademarks inures solely to BCD, and Referral shall take no action to damage the goodwill associated with the BCD Trademarks or with BCD.

3.1.3. Quality Control. Any uses by Referral of the Software, the BCD Trademarks, or the BCD Marketing Materials shall conform to all standards set by BCD from time to time. Referral acknowledges and agrees that this Section constitutes a material term of this Agreement.

3.1.4. Misuse or Infringement. Referral will use its best efforts to notify BCD promptly of any misuse or infringement of BCD Intellectual Property of which it becomes aware, and will cooperate with BCD, where reasonably necessary, to protect BCD Intellectual Property against infringement. Any decision to take action against misuse or infringement will be entirely at BCD’s discretion, and any damages recovered will be solely for BCD.

3.1.5. Reservation of Rights. BCD reserves all rights not expressly granted in this Agreement, and does not transfer any right, title, or interest to any Intellectual Property Rights contained in the Software except as expressly provided herein.

3.1.6. No Modifications. Referral shall not (i) alter, modify, adapt, translate, or create Derivative Works from the whole or any part of the Software, BCD Trademarks, or BCD Marketing Materials; (ii) permit the whole or any part of the Software to be merged, combined with, or otherwise incorporated into any other product; or (iii) copy, reverse engineer, disassemble, or otherwise attempt to derive the source code for the Software or any part thereof, unless expressly permitted to do so herein.

3.2. Ownership. Referral acknowledges and agrees that BCD maintains exclusive ownership of the Software, BCD Trademarks, and BCD Marketing Materials, including all Derivative Works, updates, or modifications thereto, and all copies and all portions thereof. All goodwill arising with respect to the use of the Software, BCD Trademarks, and BCD Marketing Materials shall inure to BCD’s exclusive benefit. Referral will not attack, question, or contest the validity of BCD’s ownership of BCD Intellectual Property, both during the Term and thereafter. Referral will not remove, alter, or conceal any BCD copyright or other proprietary notice displayed on the Software, BCD Trademarks, or BCD Marketing Materials. Referral shall not use any language or display BCD Intellectual Property Rights in such a way as to create the impression that BCD Intellectual Property Rights belong to Referral.

3.3. Feedback. Referral acknowledges and agrees that any suggestions, questions, comments, ideas, enhancement requests, recommendations, or other feedback provided by Referral relating to any aspect of the Software, any of BCD’s products or software, any aspect of BCD business, or in association with any of BCD’s related products, software, or business (“Feedback”) is the exclusive property of BCD , and may be used or exploited by BCD without restriction, condition, or compensation of any kind to Referral. Referral hereby assigns to BCD and waives its rights in any Feedback.

 

4. OBLIGATIONS OF REFERRAL

4.1. Obligations as an Referral. Referral hereby agrees: (i) to use its best efforts to (a) promote the Software to potential Customers; and (b) satisfy all reasonable criteria and policies given in writing to Referral by BCD during the Term; (ii) to conduct business in a manner that reflects favourably at all times on the Software, goodwill, and reputation of BCD ; (iii) not to use BCD Intellectual Property, except as authorized in this Agreement; (iv) to make such filings and take such actions as may be required to remain qualified to do business and perform its obligations hereunder under all applicable laws; (v) to perform its obligations under this Agreement in accordance with all applicable laws and regulations, including without limitation, privacy and anti-spam laws; (vi) to avoid deceptive, misleading, or unethical representations or practices that are or might be detrimental to BCD or the Software, including, but not limited to, distributing unsolicited marketing materials, or engaging in any activity that violates BCD ’s Terms of Service; (vii) to avoid activities or courses of action that may diminish or tarnish the image or reputation of any Trademark during the Term or after, as determined solely by BCD ; (viii) not to bid on any keywords or phrases that include any BCD Trademarks either in pay-per-click (PPC) or cost-per-acquisition (CPA) campaigns; and (ix) not to create any domains, subdomains, or URLs using the BCD Trademarks.

4.2. Specific Referral Activities. Without limiting the generality of the obligations set out in Section 4.1, Referral – without this involving any processing of the Customer's personal data on behalf of BCD – will introduce potential Customers to BCD, which may include sharing a referral link with such potential Customers.

4.3. Referral Tracking. BCD shall provide Referral with a URL generated by BCD’s third party provider for managing and tracking this Referral program (the “Tracking Service Provider”). Referral must register with the Tracking Service Provider and accept the Tracking Service Provider’s Terms of Service and Privacy Policy in order to become an Referral and receive benefits. The Tracking Service Provider shall provide Referral with a referral link to share with potential Customers. The Tracking Service Provider shall track Customer Subscriptions via cookies placed on Customer’s browser upon clicking the referral link. These cookies have a referral period of ninety (90) days, or such other period as may be determined in the sole discretion of BCD or the Tracking Service Provider, (the “Referral Period”). Should a referral link be clicked more than once by a potential Customer, the Referral Period will reset with each click. Referral shall only receive payments, per Section 5, for referrals tracked via a Tracking Service Provider referral link that result in a Subscription during the Referral Period, for the first year of Subscription by the Customer. The Referral will use its best efforts to notify BCD promptly of any misuse or infringement of the cookie use relating to this Section.

The Referral is familiar with, and declares that it has reviewed and accepts, the Tracking Service Provider’s Terms of Service and Privacy Policy. The Referral is aware and accepts that the Customer may not be tracked as described in the “Why can't I see my referral?” portion of the Tracking Service Provider’s Terms of Service and Privacy Policy, including, without limitation, if: (i) the Customer has cleared his cookies and cache, (ii) the Customer does not accept cookies on BCD website or (iii) the Customer’s browser blocks cookies. In these cases, BCD might not be able to track the Customer’s Subscription. BCD disclaims any and all liability for any damages resulting from Tracking Service Provider’s failure to pay the related Referral Commissions.

In order to prevent the lack of tracking, the Referral is required to follow the procedure set forth at the following webpage. The Referral agrees to instruct its Customers to follow such procedure and provide information about the consequences deriving from the failure to follow such procedure.

 

5. COMMISSIONS AND FEES

5.1. Fees to Customer. BCD shall directly bill Customer for the Software (the “Subscription Fees”). BCD shall be responsible for collecting Subscription Fees. During the Term, Subscription Fees may change, as determined by BCD in its sole discretion.

5.2. Payment to Referral. BCD shall pay Referral twenty percent (20%) of the Net Subscription Fees actually received by BCD from a new Customer for the Software referred by Referral and tracked per Section 4.3, for the first year of Subscription by such Customer, or such other commission as may be determined by BCD from time to time (“Referral Commission”). In no event will Referral receive any Subscription Fees for Subscriptions procured by BCD . Referral Commissions shall be triggered once a referred new Customer pays BCD and shall be paid in accordance with the Tracking Service Provider’s Terms of Service. Referral commissions shall be paid provided that the referred new Customer’s Subscription is paid as due and is not terminated within the first thirty (30) days of the Subscription. BCD reserves the right to change any aspect of Referral compensation, including but not limited to, commission rates, payment dates, and duration of payments, at any time for any reason. BCD will use commercially reasonable efforts to notify the Referral of planned compensation changes no later than sixty (60) days prior to their implementation date. Electing not to terminate this Agreement in accordance with Section 6.2.3 indicates Referral’s acceptance of any and all new, updated, or modified compensation provisions. Payment of the Referral Commissions is the responsibility of the Tracking Service Provider. BCD disclaims any liability in connection with the timeliness and correctness of any such payments, as well as Tracking Service Provider’s compliance with the terms of the Tracking Service Provider’s Terms of Service.

5.3. Referral Commission Adjustments. If a Customer’s Subscription is terminated, downgraded, or the amount to be received by BCD under the Subscription changes, the Referral Commission calculation in Section 5.2 shall be determined based on the final Subscription contract value actually received by BCD during a period not to exceed the first year of the Customer’s Subscription. If the Referral Commission is paid before a Subscription downgrade or termination, BCD reserves the right to claim any excess amount paid by BCD to Referral or to deduct such excess amount from the next payment to Referral. Should a Customer referred by Referral cancel their Subscription to the Software, BCD shall pay Referral Commission only through the final month of Customer’s active Subscription, in accordance with the applicable terms of section 5.2.

5.4. No Expenses; Taxes. Except as expressly set forth herein, each party shall be responsible for any and all costs and expenses incurred by such party in connection with its performance hereunder. Referral will be responsible for any sales, use, or other taxes (other than taxes based on BCD ’s net income), and payment processing fees that may arise in connection with Referral’s performance under this Agreement.

5.5. Currency. Referral may have the option of selecting a local currency by which to receive an Referral Commission. Available currency options and distribution thereof are managed entirely by Tracking Service Provider. BCD disclaims all liability in this area, including but not limited to, fluctuations in exchange from United States Dollars to any other currency.

5.6. No Guarantee. Referral acknowledges and agrees that BCD makes no representation or guarantee of any kind regarding revenue stream, business prospects, profit, or Customers under this Agreement.

5.7. Privacy and Data protection. The Parties acknowledge that they are adequately informed as to the applicable legislation regarding the protection of personal data currently in force, regarding the processing of personal data which may be inherent to the performance of the Agreement and declare that all such processing of personal data will be carried out in accordance with that legislation.

Regarding the processing of personal data related to the Parties, BCD and Referral will act, mutually, as data controllers.

Furthermore, Referral, regarding the performance of its obligations under the Agreement which imply the processing of personal data of Customers, will act as autonomous data controller and commits to comply with any applicable law on the protection of personal data and to inform Customers of the fact that BCD will notify Referral of any Subscription. The Referral undertakes to keep BCD fully indemnified from any cost, liability, burden, disbursement (including legal expenses or sanctions), claim from third parties or any other expense which it may suffer as a consequence of the breach by the Referral of its obligations according to any applicable privacy law.

 

6. TERM AND TERMINATION

6.1. Term. This Agreement shall commence on the date of its execution and continue in full force and effect until terminated in accordance with this Agreement.

6.2. Termination.

6.2.1. Breach. This Agreement may be terminated immediately by either party by written notice of termination if the other party breaches this Agreement and fails to remedy the breach within 30 days after receipt of written notice. Notwithstanding the foregoing: (i) either party may terminate this Agreement immediately upon written notice to the other party if the other party infringes the Intellectual Property of the party electing to terminate this Agreement or breaches the confidentiality provisions of this Agreement, and (ii) BCD may terminate this Agreement immediately upon written notice to Referral in the event Referral breaches Section 3.1.3 (“Quality Control”).

6.2.2. Cessation of Business or Insolvency. Notwithstanding anything contained herein to the contrary, either party may terminate this Agreement immediately by providing written notice to the other if: (i) the other ceases to carry on its business, or otherwise terminates its business operations, except as a result of a permitted assignment of this Agreement; or (ii) the other becomes insolvent, admits in writing its inability to pay debts as they mature, or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against the other (and not dismissed within sixty (60) days).

6.2.3. Referral Cancellation. Referral may terminate this Agreement at any time and for any reason by providing BCD with at least thirty (30) days written notice of Referral’s intention to terminate this Agreement. During the final thirty (30) days of this Agreement, Referral shall continue to receive any Referral Commission or other benefits owed, and shall have the right to continue to refer Customers through the end of the thirty (30) day notice period. All benefits, including Referral Commissions, shall cease immediately upon termination. Notwithstanding the foregoing, BCD shall pay through the Tracking Service Provider the Referral Commission matured for each qualifying Customer referred during Referral’s final thirty (30) days, within ninety (90) days of this Agreement’s termination date, per section 6.3.1.

6.2.4. BCD Cancellation. BCD may terminate this Agreement at any time and for any reason, including but not limited to, cancelling this Referral program, by providing thirty (30) days written notice to Referral. Referral shall receive outstanding Referral Commissions that originate from Customer Subscriptions entered into prior to receiving the termination notice, and during the final thirty (30) days of this Agreement, but otherwise BCD will have no liability related to such termination. Referral agrees to follow all instructions that may be provided in any termination notice. All benefits, including Referral Commissions, shall cease immediately upon termination. Notwithstanding the foregoing, BCD shall pay the Referral Commission for each qualifying Customer referred during Referral’s final thirty (30) days, within ninety (90) days of this Agreement’s termination date, per section 5.3.1.

6.3. Effect of Termination or Expiration.

6.3.1. Return of Materials. Upon termination or expiration of this Agreement, Referral will immediately return, or (at BCD ’s request) destroy, all Company Marketing Materials and Confidential Information in its possession or control, and, upon BCD ’s request, an officer of Referral will certify to BCD in writing that Referral has done so. BCD will cause Tracking Service Provider to pay all outstanding amounts owed to Referral within ninety (90) days of Agreement termination or expiration.

6.3.2. Survival. The terms and conditions of Sections 1 (Recitals, Schedules, and External Links), 2 (Definitions), 3.1.5 (Reservation of Rights), 3.1.6 (No Modifications), 3.2 (Ownership), 5.4 (No Expenses; Taxes), 6 (Term and Termination), 7 (Confidentiality), 8 (Warranties), 9 (Indemnification), 10 (Limitation of Liability), and 11 (Miscellaneous), and any right of action for breach of this Agreement that may have arisen prior to termination or expiration, shall survive any termination or expiration of this Agreement.

 

7. CONFIDENTIALITY

7.1. Definition of Confidential Information. For this Agreement, “Confidential Information” means all data and information whether in written, machine readable, or other tangible form, or disclosed orally, and whether disclosed before, on, or after the effective date, that is communicated by either party (“Disclosing Party”) to the other party (“Receiving Party”). Confidential Information shall include, but not be limited to, information relating to the Disclosing Party’s assets, properties, personnel, customers, suppliers, products, technology, service, facilities, current or proposed business plans, marketing and roll-out plans, distribution channels, financial information, prices, trade secrets, know-how, formulae, processes, data, drawings, proprietary information, any trade secrets, and any other non-public information which concerns the business and operations of the Disclosing Party or its Affiliates, whether marked or otherwise labelled as confidential. The content of this Agreement shall be considered as Confidential Information hereunder. The term “Affiliate” shall mean any person or entity directly or indirectly controlling, controlled by, or under common control with either party.

7.2. Restrictions on Use and Disclosure. The Receiving Party shall keep all Confidential Information received from the Disclosing Party strictly confidential. Receiving Party shall preserve and protect Confidential Information from disclosure by exercising the same degree of care that it exercises to preserve and protect its own Confidential Information, but in no case less than reasonable care. The Receiving Party shall not disclose any of the Confidential Information to any Person unless written permission is granted by the Disclosing Party, except that the Receiving Party may provide access to the Confidential Information to those of its directors, officers, employees, and professional advisors who need such access for the purposes of this Agreement, provided the Receiving Party uses its best commercial efforts to ensure that all such persons adhere to the terms of this Agreement. Neither party shall use, sell, license, lease, or otherwise allow third parties to use the Confidential Information of the other party, in any way, for its own or any third party’s benefit.

7.3. Exclusions. Notwithstanding the provisions of Section 7.1, Confidential Information shall not include any information that, as established by competent evidence: (a) is publicly known at the time of disclosure or becomes publicly known through no fault of the Receiving Party; (b) Receiving Party knew prior to the disclosure thereof; (c) was independently developed by Receiving Party without benefit of, use of, or reference to, Disclosing Party’s Confidential Information, as demonstrated by written records of Receiving Party which are contemporaneously maintained; or (d) is required to be disclosed by a court or tribunal of competent jurisdiction; provided, however, that Receiving Party promptly inform Disclosing Party of such obligation in writing so that, to the extent practicable, Disclosing Party may obtain a protective order or other similar remedy.

7.4. Survival. The obligations of confidentiality set forth in Section 7 shall continue in full force and effect until the later of (i) five years after termination of this Agreement, and (ii) five (5) years after such time as the last item of Confidential Information delivered by the Disclosing Party hereunder; provided, however, that as to any Confidential Information that constitutes a “trade secret” under applicable law, the obligations of confidentiality contained herein shall continue for so long as permitted under applicable law.

7.5. Breach of Confidentiality. If the provisions of Section 7 are breached, each party acknowledges that the other will suffer irreparable harm and that monetary damages will be an insufficient remedy. Consequently, the injured party shall be entitled to seek injunctive relief or other similar action. The remedy hereunder shall not preclude any other remedies available, at law or at equity, to the injured party.

 

8. WARRANTIES

8.1. Mutual Representations and Warranties. Each party represents and warrants that: (i) it has the full corporate right, power, and authority to enter into this Agreement and perform its obligations hereunder; (ii) when executed and delivered, this Agreement will constitute a legal, valid, and binding obligation enforceable against it in accordance with its terms; and (iii) it will comply with all applicable laws, rules, regulations, and orders of any governmental authority in its performance of this Agreement.

8.2. Referral Representations and Warranties. Referral warrants to BCD that: (i) Referral has all consents, permissions, or licenses necessary to perform its obligations under this Agreement, and (ii) Referral shall not make any representations, warranties, guarantees or statements with respect to the Software except as expressly permitted in this Agreement and BCD ’s Terms of Service and Referral shall be exclusively responsible for any obligations or other liability arising from any such warranties, representations, guarantees or statements made by Referral.

8.3. Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BCD HEREBY DISCLAIMS ALL OTHER WARRANTIES EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. TO THE EXTENT BCD MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

 

9. INDEMNIFICATION

9.1. BCD Indemnity. BCD hereby agrees to defend and indemnify the Referral from any and all damages finally awarded by a court of competent jurisdiction without appeal or settlement amount that may be incurred by the Referral as a result of any third party claim that BCD ’s intellectual property as used in accordance with the terms of this Agreement violated the intellectual property rights of said third party, provided that (i) Referral notifies BCD promptly in writing of the claim; (ii) the violation is not due to Referral’s misuse of the Software, failure to implement, or properly implement, a solution provided by BCD , or combining of the Software with other products, Software, or technologies; (iii) BCD has sole control of the defense and all related settlement negotiations; (iv) Referral provides BCD with all reasonable assistance, information, and authority to defend and/or settle the claim; and (v) Referral has not breached any term of this Agreement. Notwithstanding the foregoing, Referral may participate in the defense and any settlement discussions and will have the right to approve any settlement agreement purporting to bind Referral.

9.2. Referral Indemnity. Referral hereby agrees to indemnify, defend, and hold harmless BCD and its officers, directors, shareholders, employees, and consultants (collectively, the “BCD Indemnified Parties”) from any and all Losses that may be incurred by BCD Indemnified Parties as a result of any claim arising from or related to (i) Referral’s breach of any of its representations, warranties, or covenants set forth in this Agreement; (ii) Referral’s negligence or willful misconduct; or (iii) Referral’s violation of any third party Intellectual Property Right. BCD may participate in the defense and any settlement discussions and will have the right to approve any settlement agreement purporting to bind BCD .

9.3. THE FOREGOING SETS FORTH EACH PARTY’S EXCLUSIVE OBLIGATION WITH RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND.

 

10. LIMITATION OF LIABILITY

10.1. NEITHER BCD , NOR ITS OFFICERS, REPRESENTATIVES, AGENTS, EMPLOYEES, INSURERS, LICENSORS, AND SERVICE PROVIDERS, SHALL BE LIABLE TO THE REFERRAL FOR ANY LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SOFTWARE, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST DATA, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, CONTRACT, PRODUCTS LIABILITY, STRICT LIABILITY, WARRANTY, AND NEGLIGENCE, AND WHETHER OR NOT SUCH PERSON WAS OR SHOULD HAVE BCD N AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BCD ’S AGGREGATE LIABILITY TO REFERRAL UNDER THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL AMOUNT OF REFERRAL COMMISSION OWED TO REFERRAL WITHIN THE LAST SIX (6) MONTHS IMMEDIATELY PRIOR TO THE CLAIM(S) GIVING RISE TO SUCH LIABILITY.

 

11. MISCELLANEOUS

11.1. Relationship of Parties. The parties hereto expressly understand and agree that each party is an independent contractor under this Agreement and this Agreement will not create any relationship of agency, partnership, joint venture, or any similar relationship between the parties. Neither party, nor its agents or employees, are the representatives of the other party for any purpose, and neither party has the power or authority to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever.

11.2. Assignment. Neither party may assign its rights or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of the other party. Notwithstanding the foregoing, either party may: (i) assign this Agreement to any acquirer of all or of substantially all of such party’s equity securities, assets, or business; or (ii) delegate any of its obligations hereunder to subcontractors reasonably acceptable to the other party, provided that the delegating party remains responsible for the performance of all such obligations. Any attempted assignment or delegation in violation of this Section will be void and without effect. Subject to the foregoing, this Agreement will benefit and bind the Parties’ successors and assigns.

11.3. Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the internal laws of the State of California applicable to agreements made and to be performed entirely within such State, without regard to the conflicts of law principles of such State. Each party hereto irrevocably submits to the exclusive jurisdiction of (a) the Supreme Court of the State of California, San Francisco County, or (b) the United States District Court for the Northern District of California, for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby. Each of Referral and BCD agrees to commence any such action, suit or proceeding either in the United States District Court for the Northern District of California or if such suit, action or other proceeding may not be brought in such court for jurisdictional reasons, in the Superior Court of the State of California, San Francisco County. Each of Referral and BCD further agrees that service of any process, summons, notice or documents by U.S. registered mail to such party's respective address set forth or referred to below shall be effective service of process for any action, suit or proceeding in California with respect to any matters to which it has submitted to jurisdiction in this Section. Each of Referral and BCD irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or the transactions contemplated hereby in (i) the Superior Court of the State of California, San Francisco County, or (ii) the United States District Court for the Northern District of California, and further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum.

11.4. Force Majeure. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent such delay or failure is caused by any occurrence beyond the reasonable control of such party, including, but not limited to, acts of God, power outages and governmental restrictions, fires, labor disturbances, floods, epidemics, war, riot, civil insurrection, shortages of relied upon services, or intentional, reckless, or negligent acts of third parties, including unauthorized hacking on or through the Internet.

11.5. Notice. Any notice or other communication required or permitted to be delivered to any party under this Agreement shall be in writing, by an authorized representative of such party, and delivered by hand, registered mail, courier, or express delivery service, or email to the address set forth or referred to below. Notice shall be considered to have been received five (5) days after sending date if by registered mail, courier, or express delivery service, and the same day if sent by email.

11.6. No Implied Waivers. A party’s failure to exercise a right under this Agreement shall not constitute a waiver of such right. A party’s waiver of the other party’s breach of this Agreement shall not constitute a waiver of any other condition or provision or of the same condition or provision at another time.

11.7. Severability. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect. The Parties agree to renegotiate in good faith those invalid provisions so as to render them valid, enforceable provisions that reflect as closely as possible the original intent of the Parties, and further agree to be bound by such substitute provisions.

11.8. Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.

11.9. Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral. No amendment to or modification of this Agreement will be binding unless agreed to in writing and signed by a duly authorized representative of both parties. This Agreement will be interpreted in accordance with its terms and without any strict construction in favor of or against either party.