These Referral General Terms and Conditions, along with the Referral Letter of Agreement executed by the parties (each hereby incorporated into the Agreement by this reference, and together the “Agreement”), comprise the full and complete agreement between the parties on the subject matter. Any prior agreements, communications or references to the subject matter are hereby replaced in full by this Agreement.
1.1 “Confidential Information” means information of a disclosing party that, under the circumstances surrounding the disclosure, would be understood by a reasonable person to be confidential or proprietary information of the disclosing party including, by way of example and without limitation, trade secrets, computer programs, commercial plans, data, know-how, inventions (whether patentable or otherwise), formulae, techniques, methods, procedures, systems, processes, designs, plans, roadmaps, specifications, samples, reports, pricing, vendor and customer lists, and other information of the disclosing party such as employee, financial, technical, customer and product information. To the extent practicable, Confidential Information shall be disclosed in documentary and tangible form and shall be marked “Confidential”, however, the failure to include a “Confidential” marking shall not give rise to an inference that the Information disclosed is not Confidential Information. Confidential Information may also be disclosed orally and/or visually, provided that the disclosing party identifies such visual or oral information as being Confidential Information at the time of Disclosure. For the avoidance of doubt, this Agreement is Confidential Information.
1.2 “Net Services Revenue” means the amount received by itopia from Referral’s purchased Services subscription, less applicable (i) taxes, (ii) returns, (iii) credits, (iv) refunds, and (v) third party fees.
1.3 “Qualified Sale” means the sale of Services to Referral as a result of Referrer’s introduction of Referral to itopia within the Term. A Qualified Sales must be documented on a fully executed Service Order between itopia and the Referral within the Term. For the avoidance of doubt, sales of Services to Referral after the Term do not qualify and do not entitle Referral to a Referral Fee.
1.4 “Referral” means the potential end-customer company or entity stated in the Letter of Agreement.
1.5 “Referral Fee” means the commission (referral incentive payment) paid to Referrer in the amount stated in the Letter of Agreement. The Referral Fee shall be paid on the collection of Net Services Revenue from the Referral as subject to the provisions herein.
1.6 “Service Order” means the ordering document between itopia and the Referral which details the terms and conditions under which the Referral purchases Services from itopia. The Service Order is fully executed once itopia and Referral each sign the document.
1.7 “Services” means the subscription services itopia makes available from time-to-time to the general market.
1.8 “Term” means the time period stated in the Letter of Agreement.
2.1 Each party shall:
(c) Pay all expenses incurred by it in the performance of its duties under the Agreement; and
(d) Comply with all statutes, laws, regulations and good ethics in connection with the promotion, representation and introduction of itopia and the Services.
2.2 Referrer shall not:
(a) Engage in any unfair or deceptive business practices with respect to itopia or the Services; or
(b) Represent or commit itopia to any commercial terms or promises regarding the sale, delivery or functionality of the Services.
2.3 Reservation. itopia reserves the right and option to discontinue offering the Services and to modify the Services as itopia sees fit at any time with or without notice to Referrer.
3.1 Referral Fee Payment. The Referral Fee stated in the Agreement shall be payable to Referrer quarterly within thirty (30) days after the collection of Net Services Revenue for a Qualified Sale each calendar quarter end. The Referral Fee shall only apply to the first subscription term of the Qualified Sale. The Referral’s first subscription term must be a minimum of one (1) year.
3.2 Currency. All payments under these terms shall be in United States currency.
3.3 Taxes. Each of the parties is responsible for the payment of all taxes that may be levied or assessed upon it in connection with these terms.
3.4 No Referral Fee Payable. itopia has no obligation to pay Referral Fee on any of the following: (i) non-Qualified Sales; (ii) Qualified Sales in which itopia does not receive good payment; (iii) Qualified Sales terminated by Referral within thirty (30) days of Service Order effective date; (iv) free trials; (v) professional services sold to Referral, and (vi) Services subscription renewal(s) by Referral.
4.1 Ownership. Referrer acknowledges that itopia owns and reserves all rights to the Services. All right, title and interest in and to the Services, including without limitation, all copyrights, trade secrets and other intellectual property rights pertaining thereto will remain vested in itopia. Referrer shall not modify, distribute, transfer, reverse engineer, decompile or disassemble the Services. There are no implied rights granted by itopia.
4.2 Confidentiality. Each party agrees to maintain in confidence all Confidential Information. Each party, as receiving party, agrees that it shall not use the discloser’s Confidential Information other than as necessary to perform this Agreement or exercise its rights hereunder, and each party further agrees that it shall not disclose or make available the disclosing party’s Confidential Information to any person or entity, except as a necessary part of performing its obligations hereunder, and shall take all reasonable steps to prevent unauthorized disclosure or use of the disclosing party’s Confidential Information, and to prevent it from falling into the public domain or into the possession of unauthorized persons. The receiving party shall not disclose Confidential Information of the disclosing party to any person or entity other than its employees and consultants who need access to such Confidential Information in order to perform obligations under these terms and who have entered into written confidentiality agreements with the receiving party similar to the terms herein. The receiving party shall immediately give notice to the disclosing party of any unauthorized use or disclosure of disclosing party’s Confidential Information. The disclosing party agrees to assist the other party in remedying the unauthorized use or disclosure of its Confidential Information.
4.3 Marks. Each party shall remain the owner of all right, title, and interest in and to each of the its trademarks, service marks, logo designs or other designations used by it (together, “Marks”), in any form or embodiment thereof, and is also the owner of all goodwill associated with its Marks.
5.1 Term. The Term is the time period stated in the Agreement. The Term may be adjusted or extended solely by written amendment of the Agreement and duly signed by each party.
5.2 Material Breach. Either party may terminate the Agreement after the non-breaching party gives the breaching party written notice of a material of any obligation hereunder, unless such breach is cured within fifteen (15) days (or thirty (30) days in the case of a failure to pay) following the breaching party’s receipt of the written notice. Additionally, either party may at its option and without notice terminate the Agreement effective immediately if the other party (i) becomes involved in any voluntary or involuntary bankruptcy or other insolvency proceeding, or (ii) ceases to be actively engaged in business or becomes financially incapable of fulfilling its obligations hereunder.
5.3 Effect of Expiration or Termination. Upon expiration or any termination of the Agreement, the parties shall promptly destroy or return materials of the other, including Confidential Information, in its possession or under its control. itopia’s acceptance of any subscription for Services from Referral after the expiration or termination of the Agreement will not be construed as a renewal or extension of the Agreement, or as a waiver of the right to terminate or of any other matter or right. itopia shall pay to Referrer the Referral Fee for Qualified Sales consummated solely during the Term and prior to the date of expiration or termination.
5.4 No Compensation. Referrer is not entitled to any compensation, damages, or payments in respect to goodwill that has been established or for any damages on account of prospective or anticipated fees or profits, nor is Referrer entitled to reimbursement in any amount for any training, advertising, market development, data processing or security, introduction expenses, or any other cost that is expended by Referrer.
6.1 General Warranties. With regard to the terms herein, each party hereby represents and warrants to the other that: (i) it has all right, power and authority to execute and perform its obligations; (ii) it is not a party to any agreement, contract, or understanding that would prevent, limit or hinder its performance; (iii) during the Term, it will not enter into any contract, agreement or understanding which is in conflict or which would interfere with its performance; and (iv) it is not a party to any pending claims or litigation which might affect its performance.
6.2 No Product Warranties. itopia warrants the Services only to Referrals who have purchased subscriptions to the Services subject to the terms of the itopia Terms of Service. The scope of those warranties are in the sole discretion of itopia. No warranties are made to Referrer hereunder with respect to Services. Referrer has no right to make any representations or warranties, or otherwise cause any Referral to believe that any warranty, except as is provided in writing by itopia, is applicable to the Services.
6.3 Warranty Disclaimer. EXCEPT AS EXPRESSLY WARRANTED IN THIS AGREEMENT, EACH PARTY SPECIFICALLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. itopia does not warrant or guarantee any minimum amount of money Referrer will receive under the Agreement, and Referrer does not warrant or guarantee a minimum revenue itopia will receive under the Agreement.
Each party will indemnify, defend, and hold harmless the other party, its affiliates and their respective officers, directors, shareholders and representatives against all liabilities, obligations, losses, costs, damages and other expenses and attorneys’ fees relating to claims arising from a party’s own breaches, acts, omissions or misrepresentations, provided that party gives the other party prompt written notice of such claim, reasonable assistance and authority to defend such claim.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING LOST PROFITS, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OF ANY KIND. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL REFERRAL FEES PAID BY ITOPIA TO REFERRER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT APPLY IN THE CASE OF A PARTY’S BREACH OF ITS INDEMNIFICATION OR CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, OR IN THE CASE OF A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
9.1 Jurisdiction, Choice of Law. The laws of the state of Florida (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to the Agreement. The parties hereby submit to the jurisdiction of, and waive any venue objections against, the federal and state courts of Miami-Dade County, Florida in all controversies arising out of, or relating to, the terms herein.
9.2 Assignment. Referrer may not assign the Agreement or any of its rights or obligations thereunder voluntarily, by operation of law, or otherwise, (including without limitation in connection with a sale of its stock or assets or a merger, consolidation or other change of control involving Referrer), without itopia’s prior written consent, which consent shall not be unreasonably withheld. Any attempt to assign the Agreement without such consent shall be void. The Agreement shall bind and inure to the benefit of the parties and their respective successors and permitted assigns.
9.3 Severability. If any provision of these terms is determined to be invalid, illegal or unenforceable, the remaining provisions remain in full force, if the essential provisions for each party remain valid, legal, and enforceable.
9.4 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. All earlier and contemporaneous negotiations and agreements between the parties on the matters contained herein are expressly merged into and superseded by these terms.
9.5 Relationship of the Parties. Referrer and itopia enter into the Agreement as independent contractors, and neither Referrer nor itopia will be or construed to be an agent, joint venture, or employee of the other.
9.6 Compliance with Laws. Each party agrees to comply with all laws, rules, and regulations in connection with its performance and obligations under the Agreement.
Rev. Jan. 1, 2021