PLEASE READ THE FOLLOWING CAREFULLY BEFORE SUBMITTING A REFERRAL (DEFINED BELOW). BY SIGNING THIS INCREDIBUILD REFERRAL AGREEMENT (“AGREEMENT“), OR CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU, ON BEHALF OF YOURSELF OR YOUR ORGANIZATION, (“YOU” OR “REFERAL PARTNER”) ARE ENTERING INTO A LEGAL AGREEMENT WITH INCREDIBUILD SOFTWARE, LTD., AN ISRAELI COMPANY WITH OFFICES IN YIGAL ALON 114, TEL-AVIV, ISRAEL (THE “COMPANY” “WE” or “US“), AND HAVE UNDERSTOOD AND AGREE TO COMPLY WITH, AND BE LEGALLY BOUND BY, THE TERMS AND CONDITIONS OF THIS AGREEMENT (THE DATE OF SUCH OCCURRENCE BEING THE “EFFECTIVE DATE”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY AND CAPACITY TO BIND SAID EMPLOYER OR OTHER LEGAL ENTITY TO THIS AGREEMENT. TO THE EXTENT THAT YOU AGREE TO THIS AGREEMENT BY CLICKING “I AGREE”, “ACCEPT” OR OTHER SIMILAR BUTTON, YOU HEREBY WAIVE ANY APPLICABLE RIGHTS TO REQUIRE AN ORIGINAL (NON-ELECTRONIC) SIGNATURE OR DELIVERY OR RETENTION OF NON-ELECTRONIC RECORDS, TO THE EXTENT NOT PROHIBITED UNDER APPLICABLE LAW.
1. The Engagement. We hereby grant you, during the Term the non-exclusive right to introduce us to Approved Customers and to perform the Referral for the promotion of the software product owned by us (“Software, other capitalized terms are defined below). You shall enter into discussions only with Approved Customers in the territory specified in the your registration form and approved by us (“Territory“) and shall arrange and actively assist a number of meetings between us and key personnel and decision makers within such Approved Customers. For clarity such key personnel may be determined by us at our sole discretion and in advance. You shall further actively and assertively assist us in promoting our negotiations with the Approved Customers and shall attend meetings, including conference calls, with such Approved Customers as shall be requested by us from time to time, at our sole discretion (all of the above, the “Referral”).
2. Approved Customers. Prior to approaching a person, corporation or any other entity in the Territory with whom we are not currently engaged with (“Potential Customer“), you shall fill in an engagement request within the referral partner program platform, detailing the Potential Customer’s entity name, address, field of business, expertise and any other information requested by us within the applicable form. Thereafter, we shall have sole discretion to approve or disapprove such engagement request. Only Potential Customers approved in writing by us, (email confirmation shall be sufficient), may be approached by you (“Approved Customer”). You hereby agree and acknowledge that you shall only be entitled to the Commission with respect to Qualified Transactions (as such capitalized terms are defined below) consummated with Approved Customers. Once an Approved Customer has been approved by us, that Approved Customer is considered active for a period of six (6) months (“Eligible Period”) unless this Agreement is terminated due to your breach (as set forth in Section 8.3), in which case the Eligible Period shall mean solely the Term. Following the expiration of the Eligible Period such Approved Customer shall not be deemed as an Approved Customer. If we have conducted intensive negotiations and/or entered into a proof of concept agreement with an Approved Customer during the two (2) months prior to the lapse of the Eligible Period, we may, at our sole discretion and upon written notice to you, extend the Eligible Period for an additional three (3) months. Notwithstanding anything to the contrary, in the event that we have not scheduled an initial meeting with an Approved Customer within six (6) weeks following our approval of such Potential Customer as an Approved Customer, such Approved Customer shall be automatically disqualified from being an Approved Customer with no further act by either party, and we shall be entitled to approach such disqualified Approved Customer with no obligation towards you.
3. Power to Enter into Agreements. Notwithstanding anything herein to the contrary, you shall not have the right, power or authority to enter into an agreement, grant a promise, provide warranties or to commit us in any manner whatsoever. Agreements, engagements, promises and/or commitments entered by us with Approved Customers, if any, shall be made directly by us, at our absolute and sole discretion. We may reject any business combination under our sole and absolute discretion and in which case you shall not be entitled to payment in connection therewith. You shall not be entitled to use our name, trade names, trademarks or logos other than in the manner expressly authorized by us in advance and in writing.
4. Referral Partner’s Representations. You represent and warrant that: (i) you have the experience, know-how, connections and ability, and the pre-requisite connections and contacts with Potential Customers, to perform the Referral in a professional, workmanlike and efficient manner; (ii) you shall devote your best efforts to facilitate and advance the marketing and sale of Software in the Territory in accordance with our policies, as may be updated from time to time; (iii) all terms and conditions of an agreement relating to Approved Customers shall be negotiated by us and entered into solely between us and the Approved Customer; (iv) you shall not make any representations or warranties as to the Software other than those contained in the written information and data provided by us, including any related documentation; (v) in the performance of the Referral, you will fully comply with all applicable laws, regulations and ordinances and that the provision of Referral does not and shall not conflict with any other activities or services provided by you to any third parties; and (iv) you have obtained all authorizations and approvals necessary in order to perform the Referral hereunder and provide us with information regarding the Potential Customers and Approved Customers, including, without limitation, certain personally identifiable information regarding individuals engaged by the Potential Customers or Approved Customers.
5. Reserved Rights. Without limiting the generality of Section 1, we are entitled, upon our sole discretion, to establish a branch or affiliated entity and/or to appoint other marketing agent/s, distributor/s and/or representative/s that would market and/or distribute the Software in the Territory.
6. Terms of Compensation Commission. In consideration for Referral rendered by you hereunder, you shall be entitled to a commission in an amount equal to five percent (5%) of Net Revenues (as defined below) generated from a Qualified Transaction (“Commission”) as set forth hereunder. We may, but are not required to, increase your Commission percentage if we establish, at our sole discretion, that you have been significantly involved in our negotiations with the Approved Customer and have invested significant and active efforts in your performance of the Referral. The Commission shall become due and payable thirty (30) days following the end of the month in which such Net Revenues were actually received by us and shall be paid against receipt of a valid invoice.
For purposes hereof, the following terms shall have the meanings set forth below:
“Qualified Transaction” shall mean solely the execution of a binding commercial agreement for the licensing of Software but for no other transaction of any other kind by and between us and an Approved Customer, during the Eligible Period, procured through the active assistance and performance of Referral by you with respect to such foregoing Approved Customer.
“Net Revenues” shall mean the net cash proceeds actually received by us under a Qualified Transaction, which are not subject to any contingency, during the shorter period of the following: (i) the initial one (1) year period of such Qualified Transaction, except in the event of termination for Referral Partner’s breach, as described in Section 8.3 below, at which case, the period ending on the date of termination for breach; or (ii) the actual period of such Qualified Transaction. Net Revenues shall exclude: (a) any charges and related expenses that are based on actual costs pertaining to the transaction such as insurance, travel, accommodation, per diem allowance, export and import taxes, excise taxes and/or value-added tax, as applicable; (b) any reimbursements or refunds to which an Approved Customer may be entitled to with respect to a Qualified Transaction; and (c) any related service, support and maintenance fees.
6.1. Taxes. All payments are inclusive of all taxes or charges of any kind, including without limitation excise, sales, use or value-added taxes, customs or other import duties, or other taxes, tariffs or duties incorporated on such our Software, services or any component thereof. You will be responsible for paying the applicable taxes. If applicable laws require the withholding of such taxes, we will deduct the taxes from the related payment otherwise due to you, and such taxes shall be paid to the proper taxing authority.
6.2. Currency. The Commission payments to Referral Partner set forth herein shall be in the currencies paid to us in the Qualified Transaction or any other currency to be agreed upon between the parties.
6.3. Expenses. Each party shall bear all its own expenses incurred in rendering performance of this Agreement.
6.4. Full Consideration. Other than the consideration specified in this Section 6, which consideration constitutes full consideration for the Referral rendered hereunder, you will not be entitled to any other consideration for rendering the Referral hereunder.
7. Confidentiality; Proprietary Rights; Privacy
7.1. Confidentiality. You acknowledge that, from time to time, you may be exposed to certain non-public information concerning us, our customers, the Software and proposed new versions of the Software, that is our confidential and proprietary information and that is not generally known to the public (“Confidential Information”). You agree that you will take all appropriate steps to protect such Confidential Information from unauthorized disclosure, that you will not disclose such Confidential Information to any third party, and that you will not use any Confidential Information (other than as authorized by this Agreement) without our prior written consent . Your obligations with respect to Confidential Information shall continue for a period of five (5) years from the date of termination or expiration of this Agreement, or until such Confidential Information becomes publicly known, other than by your breach of this Agreement. Without derogating from any other remedies available under applicable law or agreement, we shall be entitled to obtain an injunction restraining any violation, further violation or threatened violation of the covenant set forth in this Section 7.
7.2. Proprietary Rights. We do not sell, convey, assign or transfer and you do not and shall not acquire any rights in the Software or any part thereof and/or in the Intellectual Property Rights embodied therein or connected thereto. You acknowledge our exclusive right to the Intellectual Property Rights and the Confidential Information, and that we own, and shall remain the sole owner, of such rights. “Intellectual Property Rights” shall mean all of our intangible legal rights, titles and interests evidenced by or embodied in or connected or related to the Software, including without limitation: all inventions, patents (whether patentable or un-patentable and whether or not reduced to practice), patent applications, trademarks, service marks, trade dress, logos, trade names, corporate names, domain names, any work of authorship (regardless of copyrightability), copyrights (including moral rights), trade secrets, Confidential Information, and all other proprietary rights in whatever form or medium.
8. Term and Termination
8.1. Term. This Agreement shall commence on the Effective Date and shall remain in force for a period of one (1) year, unless earlier terminated in accordance with Sections 8.2 and 8.3, or extended by us in writing (“Term”).
8.2. Termination for Convenience. We may terminate this Agreement for convenience, at any time, upon receipt of written termination notice sent by us to you.
8.3. Termination for Cause. Either party may terminate this Agreement at any time if the other party is in default with respect to any provision of this Agreement (including without limitation, the performance of Referral) and such failure or default continues unremedied for a period of fourteen (14) days after receipt of written notice thereof from the non-defaulting party.
8.4. Consequences of Termination. Upon termination of this Agreement for any reason: (i) you shall cease promoting and marketing the Software and us; (ii) you shall promptly return to us all Confidential Information and/or any such tangible property representing the Confidential Information and all copies thereof; or, at our written request, permanently erase/delete any such Confidential Information held by you in electronic form; and shall confirm in writing to us your compliance thereof; and (iii) within ten (10) days after termination of this Agreement, you shall submit to us a complete list of all pending agreements with Approved Customers in which you were involved in prior to the termination and that have not been consummated or finalized, and a complete report on the status of all such negotiations pending with respect to such Approved Customers.
8.5. Survival. Notwithstanding anything to the contrary, the provisions of Sections: 7, 8.4, 8.5, 9 and 10 shall survive termination of this Agreement.
9. Indemnification. You shall indemnify Company for any cost, liability or harm (including, without limitation, reasonable attorneys’ fees and court costs) suffered or incurred by us, our officers, directors, employees and agents, and derived from your breach of any provision of this Agreement and/or misrepresentation with respect to the parties’ relationship hereunder, Software, Company and/or its activities and/or services.
10.1. Anti-Corruption. You hereby represent that you are fully aware of any applicable anti-corruption and non-bribery laws and regulations of any country exercising jurisdiction over the contemplated activities hereunder. Further, in the provision and the performance of the obligations under this Agreement, you shall not: (a) perform any action that is prohibited by any anti-corruption laws that may be applicable to us and/or to you; (b) directly or indirectly, make any payment, or offer or transfer anything of value, or agree or promise to make any payment or offer or transfer anything of value, to a government official or government employee, to any political party or any candidate for political office or to any other third party, with the purpose of influencing decisions related to us and/or our business in a manner that would violate any anti-corruption law; and (c) retain any government official or government employee in the performance of this Agreement.
10.2. Subcontracting and Assignment. You shall not assign and/or subcontract any of your rights and obligations under this Agreement, except with our prior written consent. We may assign any of our rights and/or obligations hereunder at our sole discretion.
10.3. Notices. All notices or reports permitted or required under this Agreement shall be in writing in English and shall be by personal delivery, certified or by registered mail, return receipt requested, or electronic mail, and shall be deemed effective: (a) if mailed, 5 business days after mailing; (b) if sent by messenger upon delivery; and (c) if sent via electronic mail, upon transmission (if transmitted and received on a non-business day – on the first business day following transmission).
10.4. Independent Contractors. This Agreement does not create and shall not be construed as creating an employer-employee relationship between us and you or any of your employees, nor any agency, joint venture or partnership. You hereby represent that you are acting solely as our independent consultant, and that we have no obligation under applicable law regarding employee liability and that the total commitment liability of Company in connection to this Agreement is the consideration described in Section 6 hereinabove.
10.5. Entire Agreement. The parties have read this Agreement, and agree to be bound by its terms, and further agree that it constitutes the complete and entire agreement of the parties and supersedes all previous communications between them, oral or written, relating to the subject matter hereof. No representations or statements of any kind made by either party that are not expressly stated herein shall be binding on such party.
10.6. Waiver. Neither party’s failure to exercise any of its rights hereunder shall constitute or be deemed a waiver or forfeiture of any such rights.
10.7. Governing Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the State of Israel, without regard to its conflict of laws provisions. The courts of the city of Tel Aviv, Israel, shall have sole and exclusive jurisdiction and venue over any dispute related to this Agreement and both parties hereby consent to such jurisdiction and venue.