Referral Partner Agreement
This Referral Partner Agreement (“RPA”) describes the terms and conditions under which Adeptec will receive, accept, and reward Partners for new client referrals.
Terms and Conditions
Adeptec and Partner hereby agree to the following terms and conditions:
1. PURPOSE.
1.1. Background. Adeptec provides businesses with a comprehensive solution that includes, but is not limited to: Consulting Services, Premier Support Services, and Technical Training Services.
1.2. Program. Partner wishes to promote, market and advertise Adeptec’s Services to potential Adeptec clients through its website(s) and other marketing channels, in accordance with Adeptec’s Partner Program (“Program”) detailed in this RPA.
2. DEFINITIONS.
The following definitions with initial letters capitalized, apply to this agreement.
2.1. “Applicable Law” shall mean any international, federal, state, or local statute, regulation, or ordinance which relates, directly or indirectly, to the obligations or the interpretation or application of this RPA.
2.2. “Effective Date” shall mean the later of the dates this RPA is executed by Adeptec and Partner.
2.3. “Lead” shall mean a potential or prospective client identified by Partner.
2.4. “Notification Date” shall mean the date that Adeptec notifies Partner that it has accepted Partner’s Lead as a Referral.
2.5. “Partner” shall mean the person or business entity that reviews and agrees to the terms and conditions of this RPA.
2.6. “Party” or “Parties” shall mean Adeptec and/or Partner.
2.7. “Referral” shall mean a Lead that was qualified under Section 7.2, and for which Partner is to be paid a commission because said Lead has become a client of Adeptec by executing a Master Services Agreement (“MSA”) and Statement of Work (“SOW”) for the provision of Services.
2.8. “Referral Form” or “RF” shall mean a standard form generated by Adeptec (and available on Adeptec’s website (“Site”) to be used by Partner to identify a Lead for purposes of qualifying the Lead as a Referral (a sample of which is attached hereto as Exhibit A).
2.9. “Services” shall mean the professional services or deliverables as described in a SOW to be provided by Adeptec and subcontractors, to or for the benefit of clients. Such services may include, but are not limited to, computer programming code, documentation, services such as consulting, implementation, integration, support, and training.
2.10. “Term” shall mean the “Initial Term” and all “Renewal Term(s)” as defined in Section 13.
3. PROGRAM COMMITMENTS.
3.1. The Program. To participate in the Program, Partner must complete and sign the W-9 and RPA found on Adeptec’s website (“Site”) for participation in the Program. Adeptec may accept or reject any application at its sole discretion.
3.2. Program Activities. Partner agrees to engage in continued, active promotion of the Services in various marketing channels using the Licensed Marks and Marketing Materials, and to do so in compliance with the terms of this RPA.
3.3. Binding Agreements. As part of its participation in the Program and in acting as Adeptec’s Partner, Partner hereby agrees and consents to the terms of this RPA and the Program, the Guidelines, and any other requests and rules set by Adeptec in its reasonable discretion, in connection with Partner’s ongoing participation in the Program and promotion of the Services. In all its activities under this RPA, and specifically such activities relating to Partner’s promotion of the Services, Partner shall cooperate with Adeptec and act in good faith. In entering this RPA, Partner further recognizes and accepts the terms and rules set forth in Adeptec’s MSA and Privacy Policy, incorporated here by reference, as applicable to the provision of Services to Referrals, and regarding Partner’s adherence to the Privacy Policy in all matters involving privacy of Referrals’ information.
3.4. Modification. Adeptec may modify this RPA from time-to-time at its reasonable discretion by posting a change on the Site or notifying Partner via email. If Partner objects to any such change, Partner may terminate this RPA for cause. Partner’s continued participation in the Program following receipt of notice about changes to this RPA shall constitute binding acceptance of this RPA as amended.
3.5. Customer Relations. During and after the Term, Adeptec shall be the exclusive owner of all relations created via Partner among Adeptec and Referrals with respect to the Services, including any and all information identifying Referrals who contract with Adeptec for the use of the Services. The MSA, Privacy Policy, and Adeptec’s rules and procedures for the Services will apply to these Referrals and may be changed by Adeptec without prior notice to Partner, and Partner agrees to convey to Referrals the nature of their relations with Adeptec under this agreement.
3.6. Parties’ Expenses. The Parties shall each carry and pay all their respective costs, charges and expenses incurred by it in the performance of this RPA, except as otherwise may be agreed-upon by the Parties in writing in advance.
4. LICENSE FOR ACTIVITIES.
4.1. License. Subject to the terms of this RPA, Adeptec hereby grants to Partner a free, non-exclusive, non-transferable and revocable license (“License”) to market and distribute the Services to Referrals, and to use the Adeptec trademarks, logos and URLs provided by Adeptec and associated materials for the sole purpose of promoting the Services (collectively, “Marketing Materials”). A list of certain Adeptec trademarks and logos (“Marks”) is included in the Guidelines.
4.2. Guidelines. The license to use Adeptec’s Marks (“Licensed Marks”) granted herein is subject to Adeptec’s Trademark Usage Guidelines (“Guidelines”); which can be found on the Trademarks page, incorporated here by reference, as updated from time to time by Adeptec at its sole discretion. Adeptec may revoke this license at any time by giving Partner a written notice (including via email).
4.3. Permissible Use. (i) Partner agrees to comply with all the terms herein in using the Licensed Marks and in creating Marketing Materials. (ii) Through the Guidelines and otherwise, Adeptec shall provide specifications and other instructions from time to time as to Partner’s permissible use of the Licensed Marks in creating Marketing Materials and promoting the Services. Partner further agrees to comply with all such specifications and instructions. (iii) Partner shall ensure that all Licensed Marks appearing on its Marketing Materials are in the form approved by Adeptec in the Guidelines or otherwise, shall not modify any of Adeptec’s Marks or other Marketing Materials contrary to the reasonable instructions provided by Adeptec, and shall further comply with reasonable instructions from Adeptec as to the form, content and display of Marketing Materials. Upon termination of this RPA for any reason whatsoever, or upon written request by Adeptec, the license granted herein shall expire and Partner shall immediately cease all its activities under this RPA.
4.4. Prohibited Activities. Partner agrees not to associate Marketing Materials with content that is unlawful in any manner, or which is otherwise defamatory, discriminatory, harmful, harassing, obscene, offensive, sexually explicit, threatening, violent, or otherwise objectionable in Adeptec’s sole discretion. Partner agrees not to send unsolicited electronic messages to multiple unrelated mail recipients (“Spamming”) in promoting the Services, or otherwise to engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this RPA.
4.5. Liabilities. Partner shall be solely responsible for its operations in acting under this RPA, including, without limitation, the legality of Partner’s operations and materials, created and used in connection with this RPA. Except for a claim alleging that an Adeptec Mark violates a third party’s trademark rights, Adeptec is not responsible for the development, operation or content of Partner’s Marketing Materials and Partner agrees to defend, indemnify and hold Adeptec harmless against any and all claims, actions, causes of action, damages, or expenses (including attorney fees) relating to the development, operation, content and maintenance of Partner’s Marketing Materials.
5. INTELLECTUAL PROPERTY
5.1. Intellectual Property Rights. All intellectual property rights (including but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) in Adeptec Marks, the Services, and related content and technology (“Adeptec IP Rights”) are and will remain the exclusive property of Adeptec and its subsidiary companies. The License granted by Adeptec to Partner under Section 4.1 of the Terms and Conditions is granted solely under the terms of this RPA and in furtherance of its objectives. Partner’s right to use the Licensed Marks is at the discretion of Adeptec and is subject to Partner’s compliance with the terms and conditions of this RPA, Guidelines, and with all applicable laws and regulations. Partner agrees to (a) not use any Adeptec IP Rights in any manner reasonably likely to breach this RPA; (b) not do anything contesting or impairing any Adeptec IP Rights; (c) not create or obtain any intellectual property rights (including but not limited to trademarks, trade names, logos, patents, copyrights, domain names and derivative rights) that are substantially similar to any Adeptec IP Rights; (d) promptly notify Adeptec of any unauthorized use of any Adeptec IP Rights of which Partner has actual knowledge; and (e) always use the Licensed Marks and any other Adeptec Marks in compliance with the Guidelines. Adeptec may perform periodic reviews of any Marketing Materials presented by Partner, and shall have the exclusive authority and discretion to order the removal and/or amendment of any Marketing Materials presented by Partner.
6. LEADS.
6.1. Submission of Leads. Each Lead shall be referred to Adeptec by Partner through a standard form provided to Partner by Adeptec, which Partner shall fully complete and submit to Adeptec (“Referral Form”). At Adeptec’s request, Partner shall (a) supply any additional information reasonably requested by Adeptec, (b) discuss each completed RF in detail with Adeptec, and (c) assist Adeptec in making contact with the proposed Lead by arranging a conference call, in-person introduction, meeting, or other means of verbal communication with the Lead.
6.2. Acceptance of Leads. Within a reasonable period of time following receipt of each Referral Form, Adeptec shall review the RF to determine whether to accept or reject the Lead.
6.3. Rejection of Leads. Adeptec will be under no obligation to accept any RF submitted by Partner and may reject or decline to accept RFs for any or no reason at its sole discretion, including, without limitation, because:
6.3.1. the Lead was an existing customer of Adeptec’s at the time of submission of the RF;
6.3.2. Adeptec was already involved in preliminary or advanced discussions relating to the sale of Services to the Lead at the time of submission of the RF;
6.3.3. an RF (or similar document) has previously been submitted to Adeptec by Partner or any third party with respect to the Lead;
6.3.4. the Lead (a) does not meet Adeptec’s credit requirements, (b) is on a list of restricted or prohibited parties issued by the government of the United States or any other jurisdiction, or (c) is located in a country that is subject to a United States trade embargo or that is deemed a terrorist supporting country by the United States Government.
6.4. Lead Notification. Adeptec will notify Partner within thirty (30) calendar days (“Notification Date”) of receipt of the RF as to whether the Lead submitted by Partner to Adeptec has been accepted or rejected.
7. REFERRALS
7.1. Qualification. A Lead shall be deemed a Referral if the following conditions have been met:
(a) the Lead was submitted to Adeptec by Partner through a standard form provided to Partner by Adeptec; (b) the Lead was not rejected by Adeptec for any reason at its sole discretion, including those reasons cited in Section 6.3; (c) the Lead was referred by Partner to Adeptec through the arrangement of a conference call, in-person introduction, meeting, or other means of verbal communication with the Lead; (d) the Lead accepts Adeptec’s MSA to acquire Services through a SOW; (e) the Lead makes at least one payment for Services within ninety (90) days of first being referred to Adeptec by Partner. All Leads will be deemed rejected by Adeptec if they do not purchase Services within ninety (90) days of first being submitted to Adeptec by Partner. On a case by case basis, the Parties may mutually agree in writing (email sufficing) to waive or extend the time limit for a particular Referral beyond ninety (90) days.
7.2. Sales Process. Adeptec shall be responsible for the sales process to all Referrals, subject to the Parties’ continued good-faith cooperation in promoting the sales process.
7.3. Payment Policy. Adeptec shall collect all fees (“Fees”) from the Referral associated with the provision of the Services in accordance with Adeptec’s Payment & Pricing Policy.
8. COMMISSIONS.
8.1. Referral Fees. “Referral Fees” shall mean the applicable percentage of the Fees listed on Exhibit B (excluding any discounts or taxes) paid by the Referral pursuant to their initial order under the SOW for the first year. For initial orders that have Services in excess of one (1) year, Referral Fees payable with respect to the first year shall be determined proportionately to the total Fees payable pursuant to the initial order. For clarity, Partner shall only receive Referral Fees on a Referral’s initial order and Referral Fees will accrue and be payable for, at most, one year from the date of becoming a Referral.
8.2. Collection Costs. If required to seek remedies to collect accounts receivables associated with Referral, Adeptec shall be entitled to deduct expenses, legal fees, and/or collection costs expended prior to calculation or payment of Referral Fees.
8.3. Early Termination. If a Referral terminates the SOW, Partner will only receive a pro-rata portion of the Referral Fees proportional to the Fees paid by Referral to Adeptec.
8.4. Maximum Payment. For each Referral, Referral Fees to Partner shall be capped (“Maximum Payment”) at the amount listed on Exhibit B for the applicable Referral Fee Percentages.
8.5. Payment Schedule. Upon payment of Fees from a Referral, Adeptec shall pay Partner (“Referral Fees”) a percentage (“Referral Fee Percentage”) of the collected amount (“Fees”) in arrears. Such Referral Fees shall become payable and be paid to Partner within thirty (30) days of the end of the calendar quarter in which Fees attributed to such Referrals are paid to Adeptec.
8.6. Associated Charges. Partner shall be responsible for payment of all taxes, duties, governmental charges and other like charges levied on the Referral Fees, and Partner shall indemnify, defend and hold Adeptec harmless from and against any claims arising out or relating to all charges emanating from Adeptec’s payment of Referral Fees. All payments shall be made payable to Partner in U.S. Dollar (USD) currency. Should payment exceed $600 in any calendar year, a 1099 will be issued to Partner using the EIN or Social Security Number provided on the IRS W-9 Form.
9. LIMITATION OF LIABILITY.
9.1. Liability. ADEPTEC’S LIABILITY FOR ANY CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES AND SHALL NOT EXCEED ANY AMOUNTS OWED BUT NOT YET PAID, FOR THE REFERRAL FEE.
9.2. Disclaimer. NEITHER ADEPTEC, NOR ITS SUBSIDIARIES; NOR ANY OFFICER, OR DIRECTOR, OR ANY EMPLOYEE OR ANY OTHER REPRESENTATIVE OF ADEPTEC WILL BE LIABLE TOWARDS PARTNER OR TOWARDS ANY THIRD PARTY, FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (INCLUDING LOSS OF PROFITS OR BUSINESS) ARISING UNDER OR RELATING TO THIS AGREEMENT, EVEN IF ADEPTEC OR IT’S REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3. Limitation. NO ACTION ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, MAY BE BROUGHT BY PARTNER MORE THAN ONE (1) YEAR AFTER THE ACTION ACCRUED.
10. INDEMNITY.
10.1. General Indemnity. Partner will indemnify, defend and hold Adeptec, its subsidiaries, affiliates, officers, employees, and/or shareholders (“Indemnified Party”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against the Indemnified Party arising from any of the following: (a) a breach of the RPA by Partner; (b) the negligence, gross negligence or willful misconduct of Partner or its employees, agents or contractors; or (c) a failure by Partner or its employees, agents, contractors or invitees to comply with the laws and regulations referenced hereinbefore.
11. WARRANTY
11.1. Limited Warranty. Both Parties warrant that at all times during the Term they will comply with all applicable laws, regulations, codes of conduct, as well as this RPA, the MSA, Privacy Policy and Guidelines. During the Term and after termination of this RPA for any reason whatsoever, Partner expressly undertakes not to do anything that might reasonably be expected to damage the business, interests or reputation of Adeptec and will not make, publish or allow to be made or published any disparaging remarks concerning Adeptec, its representatives, or the Services.
11.2. Disclaimer of Warranty. Other than Adeptec’s express warranty under the previous Subsection 11.1, Adeptec makes no other warranty, express or implied, of any kind and Adeptec expressly disclaims any and all warranties and conditions, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, availability, security, title, and/or non-infringement of the subject matter of this RPA.
12. BUSINESS CONTINUITY.
12.1. Force Majeure. If either Party shall be prevented from performing any portion of this RPA by causes beyond its control, including: war, riot, insurrection, civil commotion, labor disputes, governmental regulations or controls, casualty, forces of nature, acts of God, inability to obtain materials or services, or software of third parties; such defaulting Party shall be excused from performance for the period of the delay. If a situation of force majeure lasts for more than thirty (30) days, either Party may terminate this agreement upon written notice to the other Party.
13. TERM AND RENEWAL.
13.1. Initial Term. This RPA shall commence on the Effective Date and continue in effect for one (1) year thereafter (“Initial Term”) unless Adeptec rejects Partner’s application to participate in the Program.
13.2. Renewal Term. Following expiration of the Initial Term, this RPA will be automatically renewed for additional one (1) year term (each, a “Renewal Term”), until either Party gives written notice otherwise at least thirty (30) days prior to the end of the Initial Term or any Renewal Term.
14. TERMINATION
14.1. Early Termination.
14.1.1. Without Cause. Adeptec shall have the right to terminate this RPA at any time for any or no reason by giving ten (10) days’ prior written notice to Partner.
14.1.2. For Cause. Either Party may terminate this RPA at any time, effective immediately upon written notice to the other Party who has materially breached this RPA, provided that prior to terminating this RPA the terminating Party shall provide written notice of such material breach and thirty (30) days’ opportunity for the breaching Party to cure such breach.
14.2. Effect of Termination. From and following the date of termination of the Partner’s rights under this RPA shall terminate, and Partner shall not be entitled to receive any Referral Fees or any other payments under this RPA other than commissions or payments earned or accrued prior to termination of this RPA.
15. LAW AND VENUE.
15.1. Dispute Resolution. Prior to initiating any legal action arising under or relating to this RPA, a Party shall provide the other Party written notice of a dispute and the Parties shall actively and in good faith negotiate with a view to speedy resolution of such dispute within thirty (30) days of the receipt of such notice.
15.2. Attorneys’ Fees. If a Party initiates RPA-related legal proceedings, the prevailing Party will be entitled to recover reasonable attorneys’ fees.
15.3. Governing Law. This RPA shall be governed by the laws of the State of Washington, U.S.A, without giving effect to any principles of conflicts of law.
15.4. Jurisdiction. Jurisdiction shall lie exclusively in the District Courts of Spokane County, Washington. The sole and exclusive jurisdiction and venue for any litigation arising out of this RPA shall be an appropriate federal or state court located in the State of Washington, and the Parties agree not to raise, and hereby waive, any objections or defenses based upon venue or Forum non Conveniens.
16. MISCELLANEOUS
16.1. Independent Contractors. The Parties herein act on their own behalf as independent contractors. Each Party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers compensation, and all other employment benefits. Nothing in this RPA, and no course of dealing between the Parties, shall be construed to create an agency, franchise, joint venture, employment, or any other relationship between the Parties beyond the relations set out in this RPA, and Partner is expressly precluded from acting on Adeptec’s behalf. Partner’s display of Licensed Marks under this RPA, other content presented by Partner, or contact among Partner and third parties shall not misrepresent the relations described herein.
16.2. Non-Solicitation. During the term of this RPA and for a period of one (1) year after its expiration or termination, neither Party shall hire, employ or solicit any employee of the other Party, or have such employee work for such Party either directly or indirectly.
16.3. Confidential Information. Each of the Parties guarantees that all information of a confidential nature received from the other Party before, during and after the conclusion of the RPA shall remain confidential.
16.4. Non-Disparagement. During the Term and for five (5) years thereafter, Partner agrees that it will not disparage Adeptec or any of its officers, directors or employees or otherwise take any action that could reasonably be expected to adversely affect Adeptec’s reputation. For purposes of this RPA, “disparage” shall mean any negative statement, whether written or oral, about Adeptec or any its officers, directors or employees. The Parties agree and acknowledge that this non-disparagement provision is a material term of this RPA, the absence of which would have resulted in the Adeptec refusing to enter into this RPA.
16.5. No Waiver. Either Party’s failure to enforce the other Party’s strict performance of any provision of this RPA will not constitute a waiver of the first Party’s right to subsequently enforce such provision or any other provision of this RPA.
16.6. Assignment. Adeptec may assign this RPA at any time. Partner may not assign or transfer this RPA without Adeptec’s prior written consent, such consent not to be unreasonably withheld.
16.7. Severability. If any provision or portion of this RPA shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
16.8. Entire Agreement. This RPA represents the entire agreement among the Parties regarding the subject matter thereof and the Parties’ respective obligations and commitments herein. No other documents, nor oral or written agreements among the Parties, reflect in any way on the agreements laid out in this RPA.
16.9. Notices. Unless otherwise agreed to by the Parties, all notices shall be deemed effective when made in writing and received by either (i) registered mail, (ii) certified mail (return receipt requested), (iii) overnight mail, or (iv) fax with confirmation, addressed and sent to the receiving Party’s address specified in this RPA.
Exhibit A
Referral Form
This is an example of the standard form provided by Adeptec and available on Adeptec’s website (“Site”) to be used by Partner to identify a Lead for purpose of Referral.
1. Referring Partner: John Smith
2. Referral Partner ID: 1000-00-001
3. Company: Example, Inc.
4. Street Address: 123 Broadway Ave.
5. City: Seattle
6. State (US Only): Washington
7. Zip Code: 98104
8. Country: USA
9. Contact Name: John Smith
10. Position: CEO
11. Phone: 206-462-6000
12. E-Mail: John Smith@example.com
13. Services: Deployment; Configuration;
14. Products: Network Performance Monitor; Server & Application Monitor
15. Estimated Project Date: 12/16/2016
Exhibit B
Referral Fees
Referral Fee Table to be provided to Partner after signing up for Adeptec’s Partner Program.