WHEREAS, the parties desire to market the Company Services by allowing Partner to promote the Company Service and to reward Partner for referrals of customers to Company. NOW THEREFORE, the parties agree as follows.
1.1 "Confidential Information" means all proprietary or confidential material or information disclosed orally or in writing by the disclosing party to the receiving party, including the terms and conditions of this Agreement, that is designated as proprietary or confidential or that reasonably should be understood to be proprietary or confidential given the nature of the information and the circumstances of the disclosure; provided, that Confidential Information shall not include any information or material that: (i) was or becomes generally known to the public without the receiving party's breach of any obligation owed to the disclosing party; (ii) was or subsequently is independently developed by the receiving party without reference to Confidential Information of the disclosing party; (iii) was or subsequently is received from a third party who obtained and disclosed such Confidential Information without breach of any obligation owed to the disclosing party; or (iv) is required by law to be disclosed (in which case the receiving party shall give the disclosing party reasonable prior notice of such compelled disclosure and reasonable assistance, at disclosing party's expense, should disclosing party wish to contest the disclosure or seek a protective order).
1.2 "Net Revenue" means the gross amounts owed by a Company customer to Company for Fees, net of any discounts or refunds.
1.3 "Opportunity" means a fully-executed and closed order for Company’s Services that is an initial order, by a new Company customer, that resulted from a lead referral by Partner. The referred Opportunity must not be an existing Company opportunity then, currently, or during the prior sixty (60) days, in Company’s active sales process, and the order must be executed within 6 months of the referral.
1.4 "Company Services" means the solutions offered by Company:
Thrive is a social media command center designed to help nonprofits find and engage champions for their cause. Thrive helps nonprofits fundraise, grow their memberships and increase awareness on the social web through communication and listening tools, lead generation tools, social CRM and reporting.
Small Act consultants help nonprofits develop social media strategies and tactics to get donors, raise funds, recruit volunteers and raise awareness for their cause through social media.
1.5 "Company Site" means the Company website: www.smallact.com
2. APPOINTMENT AND OBLIGATIONS
(a) Appointment. Company hereby appoints Partner as a non-exclusive, independent referral and marketing Company for Services, subject to the terms and conditions of this Agreement.
(b) MARKETING AND REFERRALS. Company agrees to make marketing and referrals payments to
Partner in accordance with MOU.
(a) Lead Generation. Partner agrees to use good faith efforts to refer prospective Company Service customer leads to Company and to introduce Company to Partner's customer base and prospective customers as appropriate. Partner will generate leads for Company’s Service via its marketing and co-sales efforts and incorporate the presentation of the Company Service into its account sales and engagement delivery processes as appropriate and reasonable.
(b) Competing Products. Partner agrees to advise Company within thirty (30) days of commencement of any promotion, marketing or distribution of a new Competing Product. "Competing Product" means a product offering similar functionality to the Company Software Products. Partner shall promote Company in a balanced and equitable manner as compared to any existing or new Competing Product. In no event shall Partner’s marketing or sales materials or website disparage the Company Service or compare it unfavorably to a Competing Product. Any presentation regarding Company or the Company’s Service in conjunction with a Competing Product, in Partner's marketing materials or on its websites, shall be subject to Company's prior written approval.
2.3 Additional Obligations. Additional obligations of the parties may be set forth in the exhibits and attachments hereto.
3. TRADEMARK CROSS-LICENSE
3.1 License. Each party hereby grants to the other a worldwide, nonexclusive, nontransferable, non-sublicenseable, royalty-free license to use, in Company's case, "Partner" and associated logos and, in Partner's case, Company's name and associated logos (collectively, "Marks") solely in connection with the other party's rights, duties and obligations under this Agreement.
3.2 Use. Any use of Marks shall be in accordance with the granting party's reasonable trademark usage policies, with proper markings and legends, and subject to granting party's prior written approval. The granting party may withdraw any approval of any use of its Marks at any time in its sole discretion.
3.3 Standards. During the period of use, the licensed party shall reasonably cooperate with the granting party in facilitating the granting party's monitoring and control of the nature and quality of products and services bearing the granting party's Marks, and shall supply the granting party with specimens of the licensed party's use of the granting party's Marks upon request. If the granting party notifies the licensed party that the licensed party's use of the granting party's Marks is not in compliance with the granting party's trademark policies or is otherwise deficient, then the licensed party shall promptly comply with such policies or otherwise as directed by the granting party. Neither party shall make any express or implied statement or suggestion, or use the other party's Marks in any manner, that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on the other party or its business, products or services.
3.4 Mark Ownership. Each party acknowledges that the other party's Marks are and shall remain Marks of the other party. Neither party shall gain any right, title or interest with respect to the other party's Marks by use thereof, and all rights or goodwill associated with the other party's Marks shall inure to the benefit of the other party.
4. REPRESENTATIONS AND WARRANTIES
Each party represents and warrants to the other that: (i) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder; (ii) the execution of this Agreement and the performance of its obligations hereunder does not and will not conflict with or result in a breach (including with the passage of time) of any other agreement to which it is a party; (iii) this Agreement has been duly executed and delivered by such party and constitutes the valid and binding agreement of such party, enforceable against such party in accordance with its terms (except as may be limited by public policy or creditors' rights generally); (iv) it owns its Marks or otherwise has the right to grant the licenses hereunder; and (v) its Marks do not, and their use by the other party as contemplated hereunder will not, infringe any intellectual property or other rights of any third party.
5.1 Indemnification. Each party shall indemnify, defend and hold harmless the other party and its officers, directors, employees, agents, subcontractors and affiliates from and against any loss, damage or expense (including reasonable attorneys' fees) incurred in connection with any claims, actions, demands, suits or proceedings (collectively, "Claims") made against the other party by a third party and arising out of a breach by the indemnifying party of this Agreement (including any representation or warranty contained herein).
5.2 Notice, etc. The party seeking indemnification shall (i) notify the indemnifying party in writing of any Claim as soon as practicable upon knowledge of same, (ii) give the indemnifying party the opportunity, and full and exclusive authority, to defend, settle or participate in the defense or settlement of the Claim, and (iii) provide to the indemnifying party all reasonable requested assistance (at the indemnifying party's expense); provided, however, that (a) no failure to notify the indemnifying party shall relieve it of its indemnification obligations hereunder except to the extent the indemnifying party can demonstrate detriment attributable to such failure, and (b) the indemnifying party shall not settle any Claim in a way that imposes any obligation or liability on the indemnified party without the indemnified party's prior written consent (which consent will not be unreasonably withheld).
6. DISCLAIMER OF WARRANTIES
SMALL ACT NETWORK, LLC DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE SMALL ACT NETWORK, LLC SERVICE, WHICH IS PROVIDED SOLELY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN SMALL ACT NETWORK, LLC AND THE END USER CUSTOMER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAW, INCLUDING WITH RESPECT TO VALIDITY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT SHALL SMALL ACT NETWORK, LLC BE LIABLE TO Partner OR ANY OTHER INDIVIDUAL OR ENTITY AFFILIATED WITH Partner FOR ANY CLAIM, LOSS OR DAMAGE ARISING OUT OF THE OPERATION OR AVAILABILITY OF THE SMALL ACT NETWORK, LLC SERVICE.
7. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHETHER UNDER TORT, CONTRACT OR ANY OTHER THEORY, EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EACH PARTY'S INDEMNIFICATION OBLIGATIONS, IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE OF THE AMOUNTS PAID OR PAYABLE BY EITHER PARTY TO THE OTHER UNDER THIS AGREEMENT.
Neither party shall use or disclose any Confidential Information of the other party for any purpose outside the scope of this Agreement, except with the other party's prior written consent. Each party shall protect the other party's Confidential Information in a manner similar to its own Confidential Information of like nature (but in no event using less than reasonable care). In the event of an actual or threatened breach of a party's confidentiality obligations, the non-breaching party shall have the right, in addition to any other remedies available to it, to seek injunctive relief, it being specifically acknowledged by the breaching party that other remedies may be inadequate.
9. TERM AND TERMINATION
9.1 Term. This Agreement shall commence on the Effective Date and shall continue for one (1) year thereafter (the "Term"), unless terminated earlier as set forth below, and shall automatically renew for a subsequent one (1) year Term on each anniversary date thereafter unless either party elects to terminate the Agreement in writing.
9.2 Termination. Without prejudice to any other right or remedy available at law or in equity in respect of any event described below, this Agreement may be terminated under the following circumstances:
(a) Convenience. Either party may terminate this Agreement for convenience without penalty at any time upon thirty (30) days prior written notice.
(b) Cause. Either party may terminate this Agreement for cause, with fifteen (15) days prior written notice, upon a material breach by the other party that is not cured within such period; provided, however, that where the breach is (i) a purported assignment in violation of this Agreement, or (ii) of a party's confidentiality obligations, then the nonbreaching party may terminate this Agreement immediately upon written notice.
9.3 Effect of Termination. Following termination or expiration of this Agreement: (i) each party shall continue to maintain the confidentiality of the other party's Confidential Information and shall, within thirty (30) days, return to the other party or destroy (at the other party's election) all tangible embodiments of same and any equipment, software or other materials belonging to the other party. Each party shall immediately cease all use of the other party's Marks and intellectual property related to this Agreement. Sections 1, 4, 5, 6, 7, 8, 9 and 10 shall survive expiration or earlier termination of this Agreement.
10.1 Notices. All notices, approvals, consents, waivers and other communications under this Agreement must be in writing and will be deemed to have been given when: (a) delivered by hand; (b) sent by facsimile (with confirmation of receipt); (c) received by the addressee, if sent by a nationally recognized overnight delivery service or U.S. mail; or (d) received by the addressee if sent by email; to the addresses, facsimile numbers and/or email addresses set forth below (or to such other addresses, facsimile numbers or email addresses as a party may designate by notice to the other party from time to time):
To Partner: with a copy to signee of Memo of Understanding.
To Company: with a copy to:
Small Act Network, LLC Corporation
1616 Anderson Road, Suite 225, McLean, VA 22102
10.2 Publicity. Any references by one party to the other shall be subject to the prior written approval of the party being referenced, in the referenced party's sole discretion. The parties shall mutually agree on the form, content and timing of any publicity or promotional communications referencing both parties.
10.3 Dispute Resolution; Waiver of Jury Trial. The parties shall make good faith efforts to resolve any dispute arising under this Agreement within sixty (60) days and shall refrain during that time (except for requests for injunctive relief) from initiating any litigation or other proceeding relating to such dispute. In any litigation arising under this Agreement, the parties hereby irrevocably waive any right to a jury trial and consent to a court trial.
10.4 Independent Contractors. The relationship between the parties is that of independent contractors. Nothing in this Agreement shall be deemed to create an employment, partnership, joint venture or agency relationship between the parties.
10.5 Assignment. Neither party may assign this Agreement, in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party, except in connection with a merger, reorganization or sale of all or substantially all assets or equity interests.
10.6 Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Virginia without reference to its conflicts or choice of laws provisions. Each party hereby consents to the exclusive jurisdiction of the courts located in Fairfax, VA.
10.7 Waiver. Any waiver by either party of a term or condition of this Agreement in any instance shall not be deemed to be a waiver of any subsequent breach thereof, or of any other provision. All remedies, rights, undertakings, obligations and agreements contained in this Agreement shall be cumulative, and none of them shall be in limitation of any other.
10.8 Severability. If any of the provisions, or part thereof, of this Agreement shall be invalid or unenforceable under the laws of the applicable jurisdiction, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Agreement but rather the entire Agreement shall be construed as if not containing the particular invalid or unenforceable provision or part thereof, and the rights and obligations of the parties shall be construed and enforced accordingly.
10.9 Entire Agreement. This Agreement (including the attachments and MOU hereto) represents the complete agreement of the parties, supersedes all prior discussions, communications and agreements between the parties with respect to the subject matter hereof, and cannot be amended or modified except in a writing signed by both parties.