Infinio Systems, Inc. Referral Partner Program Agreement

This Referral Partner Program Agreement (the “Agreement”) is entered into by and between you (“Partner”) and Infinio Systems, Inc., a Delaware corporation, with its principal place of business at 222 Third St. Suite 3300, Cambridge, MA 02142 (“Infinio”).  BY CHECKING THE BOX INDICATING YOU HAVE READ AND AGREED TO THIS AGREEMENT, YOU FULLY ACCEPT AND AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THIS AGREEMENT.  IF YOU DO NOT AGREE TO THESE PROVISIONS, DO NOT CHECK THIS BOX.  CHECKING THIS BOX ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AND INFINIO IF INFINIO ACCEPTS YOU INTO THE REFERRAL PARTNER PROGRAM.

1. DEFINITIONS


1.1 Effective Date means the date Infinio notifies Partner that Partner has been accepted into the Referral Partner Program.

1.2 End User means a third party that is licensed by Infinio to use the Product for its own business operations.

1.3 Opportunity means, in Infinio’s reasonable determination, (i) a referral of a potential new End User, or a subsidiary, division or other distinct business unit of a pre-existing End User, or (ii) a referral of a potential new sale of additional licenses to the Product or a potential upgrade in the Product, in each case, resulting from Partner’s specific sales efforts, and in each case, solely with respect to an End User originally referred to Infinio by Partner pursuant to and in accordance with the terms of this Agreement. Notwithstanding the foregoing,  an Opportunity will not include any referral of (a) an existing Infinio qualified opportunity then currently, or during the prior twelve (12) months, in Infinio’s active sales process, (b) an affiliate of Partner which controls, is controlled by, or is under common control with Partner, or (c) an Opportunity previously submitted to Infinio by a different partner.

1.4 Partner Web Site means the Infinio web site containing information regarding the Infinio Referral Partner Program located at http://www.infinio.com/partners or at such other URL as Infinio may designate.

1.5 Program Description means the then-current applicable Infinio Referral Partner Program Description, which is hereby incorporated into this Agreement. Infinio may revise the Program Description from time to time, with any revised Program Description becoming effective and superseding all earlier program descriptions thirty (30) days after it is posted on the Infinio Partner Web Site or delivered through one of the methods listed in Section 12.1.

1.6 Qualified Purchase means, in Infinio's reasonable determination, a purchase of a license to the Product that is fully executed, paid for, and closed.  In the event a purchased license is rejected or returned and Infinio repays or credits the End User the purchase price for such license, the purchase of such license shall not be deemed a Qualified Purchase hereunder.

1.7 Product means the Infinio Accelerator. This Product does not include support, implementation, customization, training, consulting or other professional services, or third party products or services.

1.8 Territory shall be the United States and Canada, or any other country explicitly agreed to in writing by Infinio and Partner in a communication separate from this agreement.

2. APPOINTMENT

Subject to the terms and conditions of this Agreement, Infinio appoints Partner as a nonexclusive referral partner of Infinio for the marketing of Products within the Territory.  Partner shall not market Products outside the Territory.  This appointment is neither assignable nor transferable without the prior written consent of Infinio. Rights not expressly granted in this Agreement are hereby reserved by Infinio. Partner understands and acknowledges that Infinio and its other referral partners may market and sell the Product directly and indirectly to End Users or potential End Users in the Territory.

3. REFERRAL FEES 


3.1. Referral Fees. Infinio will pay Partner a referral fee for each Opportunity that Partner submits to Infinio through the designated web page that within six (6) months results in a Qualified Purchase in accordance with the applicable referral fee schedule as set forth in the Program Description.  Such referral fee shall be paid by Infinio to Partner within sixty (60) days after Infinio receives all relevant fees from the Qualified Purchase.

3.2. Payments. Infinio will be solely responsible for billing End Users of the Product and collecting payment. Infinio will pay Partner any referral fees earned as scheduled in the Program Description.

3.3. Taxes. All amounts payable hereunder are exclusive of any sales, use, excise, property, value added or any other taxes associated with Partner’s or an End User’s purchase or use of the Product. Partner is responsible for payment of any and all taxes due on account of Infinio’s payment of the referral fees.

4. TRAINING AND SUPPORT

4.1. Infinio will provide training and support as set forth in the Program Description. Such training and support may be at additional cost and shall be pursuant to any fee schedule set forth in the Program Description.

4.2. Demonstration Licenses.  During the Term, Infinio may provide Partner with not-for-resale licenses of the Product to be used solely for training and demonstration purposes and in accordance with Infinio’s standard End-User license agreement (the “NFR/Demonstration Licenses”). Infinio will issue license keys enabling Partner’s access to the Product under NFR/Demonstration Licenses, and Partner will accept and be bound by the End-User license agreement (the current version of which is available for reference on the Infinio Community Support page at http://www.infinio.com/community-support/support/end-user-license-agreement) with respect to use of the Product, subject to the following modifications: (i) Partner’s use under the NFR/Demonstration Licenses shall be for training and demonstration purposes only, and (ii) the duration of the NFR/Demonstration License term shall be as set forth in the license key or, if no term is specified, coterminous with this Agreement, but in any event terminable by Infinio at any time.  Infinio makes no warranty and shall have no support obligation of any type regarding the Product used under a NFR/Demonstration License, and Partner shall cease use of and return all copies of such Products to Infinio upon the earlier to occur of expiration of the term of the NFR/Demonstration License and the written request by Infinio.

5. PARTNER’S OBLIGATIONS


5.1. Requirements. Partner shall comply and maintain compliance with the requirements listed in the then-current Program Description. If at any time Partner is not in compliance with any such requirements, Infinio may terminate this Agreement in accordance with Section 11.3 herein.

5.2. Conduct. Partner agrees (i) to conduct business in a manner that complies with all applicable laws and regulations and reflects favorably at all times on the Product and the goodwill and reputation of Infinio, (ii) not to engage in any deceptive, misleading or unethical practices, (iii) not to publish or employ or cooperate in the publication or employment of any misleading or deceptive advertising material, and (iv) not to make representations, warranties, or guarantees with respect to the specifications, features, or capabilities of the Product that are inconsistent with or in addition to those expressly made in the license agreements, warranties or literature distributed by Infinio.

5.3. Protection of Product. Partner shall promptly notify Infinio of any suspected copyright or trademark infringement with respect to the Product and provide reasonable assistance in investigating and prosecuting any such activity. Partner shall not deface, obscure or remove from the Product any copyright notice, trademark, labeling or other notice or item included therein or therewith, and Partner shall not permit or encourage another to do so. 



6. WARRANTIES, DISCLAIMERS AND LIMITATIONS


6.1. Standard Warranty. The warranties of Infinio applicable to the Product are stated in the end user license agreement between Infinio and the End User and are the only warranties made by Infinio relating to the Product. Such warranties are made to the End User (and not Partner) and are subject to any and all accompanying disclaimers, limitations and other terms.

6.2. Disclaimers. INFINIO MAKES NO WARRANTIES TO PARTNER, AND INFINIO EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

6.3. Limitation on Liability. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, INFINIO’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PRODUCT SHALL IN NO EVENT EXCEED THE AGGREGATE AMOUNT OF REFERRAL FEES PAID BY INFINIO TO PARTNER UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CAUSE OF ACTION AROSE. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS, AND OTHER TORTS.

6.4. Exclusion of Certain Damages. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, INFINIO SHALL IN NO EVENT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE OR BUSINESS OPPORTUNITIES, REGARDLESS OF THE FORM OF ACTION AND EVEN IF INFINIO HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.

7. INDEMNITY


Partner shall be responsible for, and shall defend and indemnify Infinio against and hold Infinio harmless from, any and all claims, damages, suits, judgments and expenses (including reasonable attorneys’ fees) arising out of any misrepresentation or wrongful conduct of Partner or its employees or agents, or any breach of this Agreement by Partner. Partner agrees that in the course of advertising and selling the Product it shall make no representations or claims other than those contained in the standard descriptions and advertising literature for the Product furnished to Partner by Infinio. For clarity and without limitation, in the event that Partner makes any representation or claim other than those permitted above, Infinio shall have no responsibility, liability, obligation or expense relating to or resulting from such representation or claim by Partner.

8. OWNERSHIP & PROPRIETARY RIGHTS


8.1. Property Rights. Partner agrees and acknowledges that this Agreement does not transfer or convey to Partner or any End Users any ownership in or to the Product, or in or to any patents, trademarks, inventions, copyrights, trade secrets or any other intellectual property relating to the Product, and that all of the foregoing are owned and held exclusively by Infinio and/or its licensors, if any.

8.2. Modification. This Agreement does not convey any license, expressly or by implication, to manufacture, reverse engineer, duplicate, or otherwise copy or reproduce any of the Product. Partner shall not (i) develop derivative works or derivative products with the use or aid of the Product, (ii) reproduce or disassemble, decompile, or reverse engineer the Product, or (iii) modify the Product or bundle the Product with any non-Infinio services or components, without express written consent from Infinio.

8.3. Feedback. Any recommendations, ideas, contributions, corrections, enhancements, improvements, or the like relating to the Product that are submitted to Infinio by Partner shall be the sole property of Infinio, and Partner hereby assigns and will assign to Infinio all rights in the same, including without limitation all copyrights, trade secrets, patent rights, and other intellectual property thereto.

9 CONFIDENTIALITY

Partner acknowledges that, by reason of its relationship to Infinio under this Agreement, Partner may have access to certain information and materials concerning Infinio’s business, plans, End Users, potential End Users, and existing or in-development technology or products, in each case that are confidential. Such information and materials are of substantial value to Infinio, which value would be impaired if such information were disclosed to third parties. Partner shall not disclose to third parties, or use in any way for its own account or for the account of any third party, any such confidential information disclosed or made available to it by Infinio. Partner shall not publish any descriptions of the Product beyond the descriptions published by Infinio.

10. TRADEMARKS & TRADE NAMES


10.1. Trademark Rights. Subject to the terms and conditions of this Agreement, Infinio grants to Partner a nonexclusive, nontransferable, royalty-free right to use the Infinio logo and any other trademarks set forth in the Program Description (“Trademarks”), solely to promote and market the Product during the term of this Agreement and only in accordance with Infinio’s then-current trademark usage policies as published by Infinio on its web site or as otherwise communicated to Partner from time to time. Partner acknowledges that Infinio is the owner of the Trademarks and Partner agrees that it will do nothing inconsistent with such ownership and that all use of the Trademarks by Partner shall inure to the benefit of Infinio. Partner agrees to notify Infinio within thirty (30) days of its use of Infinio Trademarks and to supply a copy of the material containing Trademarks, including disclosure of distribution and intended recipients of the material.  If Infinio determines that Partner is using or displaying any Trademark in a manner that is or may be detrimental to Infinio’s interest, Infinio may issue reasonable instructions to Partner concerning the manner, if any, in which Partner may continue to use such Trademark.  Partner shall promptly comply with such instructions or cease the use or display of such Trademark.  Except as set forth herein, Infinio reserves all right, title and interest in the Trademarks. Partner shall not register or attempt to register the Trademarks or any trademarks confusingly similar to the Trademarks in any country or jurisdiction. Partner shall not make any express or implied statement or suggestion, or use the Trademarks in any manner, that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on Infinio or its business, products or services.

10.2. No Conflict. Partner agrees that it shall not adopt a trademark, trade name, uniform resource locator (“URL”), Internet domain name or symbol confusingly similar to any trademark or name of Infinio or its products. If Partner has used or is using or has previously registered any such mark, symbol, or name prior to or after entering into this Agreement, Partner shall irrevocably and without limitation or additional consideration assign, transfer, and convey all rights, privileges, registrations, and titles, if any, claimed thereto by Partner to Infinio and shall then strictly comply with the provisions of this Section 10. Infinio may (in addition to any other available remedies) terminate this Agreement immediately if Partner opposes, contests, or challenges in any manner Infinio’s ownership and use of its name and trademarks.

11. TERM & TERMINATION


11.1. Term of the Agreement. This Agreement shall commence as of the Effective Date and shall continue in effect for one (1) year. This Agreement shall thereafter automatically renew for successive one year terms, unless a party provides the other with a written notice of termination at least thirty (30) days prior to the expiration of the initial term or the then-current renewal term.

11.2. Termination for Convenience. Notwithstanding Section 11.1, either party may terminate this Agreement by giving thirty (30) days written notice to the other party.

11.3. Termination by Infinio. Notwithstanding Section 11.2, Infinio may immediately terminate this Agreement by providing Partner with notice in accordance with Section 13.1 if (i) Partner makes any assignment for the benefit of creditors, files a petition for bankruptcy, or is adjudged bankrupt or becomes insolvent or is place in the hands of a receiver; or (ii) Partner breaches Section 5, 8.2, 9, or 10, or engages in, or participates with any third party in, the infringement or misappropriation of Infinio’s intellectual property or other rights.

11.4. Effect of Termination. Upon termination of this Agreement for any reason, all rights and licenses granted to Partner under this Agreement will immediately terminate. Partner shall continue to be entitled to receive any amounts owing to Partner up to the date of termination, at which time payment of Referral Fees to Partner will be discontinued, unless otherwise stated in the Agreement. Termination of this Agreement shall not act as a waiver of any breach of this Agreement or as a release of either party from any liability for breach of such party’s obligations under this Agreement. Notwithstanding any other provision in this Agreement, Infinio will not by reason of the termination of this Agreement be liable for compensation, reimbursement, or damages on account of any loss of prospective profits on anticipated sales, or on account of any expenditures, investments, or other commitments made in connection with Partner’s business or goodwill, or otherwise.

11.5. Survival. Sections 3.3, 6, 7, 8, 9, 11.4, 11.5, 12, and any other provision of this Agreement which by its nature or express terms extends beyond the duration of this Agreement, shall survive termination of this Agreement.

12. OTHER PROVISIONS 


12.1. Notices. Unless otherwise expressly provided in this Agreement, all notices and other communications required or permitted under this Agreement must be in writing and shall be (a) delivered personally, (b) sent by confirmed telex, fax, or e-mail, (c) sent by commercial overnight courier with written verification of receipt, or (d) sent by registered or certified mail, return receipt requested, postage paid. Unless a substitute address is communicated to the other party in writing, any such communications must be sent to Partner’s address as set forth in this Agreement and to Infinio at the following address: Infinio Systems, Inc., Attn: Referral Partner Program, 222 Third St. Suite 3300 Cambridge, MA 02142, with a copy to Attn: Legal Counsel.

12.2. Assignment and Successors. Partner may not transfer or assign, directly or indirectly, this Agreement or any interest therein or any right or obligation thereunder, voluntarily or by operation of law without Infinio’s prior written consent. Any attempted assignment or delegation without such consent, except as expressly set forth herein, will be void, or at the non-assigning party’s sole discretion, may be treated as fully binding upon and in force and effect against any such successor or assign. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns. Infinio may assign or transfer this Agreement to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger or acquisition.

12.3. Independent Contractors. The parties are independent contractors. Notwithstanding the use of the term “Partner” in this Agreement, for all legal purposes, the parties are not partners or joint ventures and their relationship is not that of a partnership, joint venture or principal-agent. Instead, the parties are independent contractors. All financial obligations associated with a party’s business are the sole responsibility of such party. Partner does not have any express or implied right, power or authority to enter into any agreement or commitment on behalf of Infinio.  All sales and other agreements between Partner and End Users are Partner’s exclusive responsibility.

12.4. Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the laws of the Commonwealth of Massachusetts and the United States of America. The federal and state courts located in the Commonwealth of Massachusetts shall have exclusive jurisdiction to adjudicate any dispute arising out of this Agreement, and the parties hereby consent to the exercise of jurisdiction by such courts.

12.5. Publicity. Infinio may use the name and identity of Partner in advertising, publicity, or similar materials to designate Partner as a participant in Infinio’s Referral Partner Program.

12.6. Entire Agreement. This Agreement (including the Program Description, and any Appendices) (i) represents the entire agreement between the parties relating to the subject matter of this Agreement, (ii) supersedes all prior agreements, documents, understandings, and representations relating to the subject matter of this Agreement, and (iii) may be amended, canceled or rescinded only by a writing signed by both parties, except for any revisions that Infinio may make to the Program Description as described in Section 1.5. Any terms or conditions of any purchase order or other document submitted by Partner which are in addition to, different from or inconsistent with the terms and conditions of this Agreement are not binding on Infinio and are ineffective. The terms of the Program Description will govern in the event of any conflict between the Program Description and the terms and conditions of this Agreement.

12.8. Severability. If any provision of this Agreement is invalid under applicable law, such provision shall be limited, narrowed, construed and altered as necessary to render it valid, but only to the extent necessary to achieve such validity. If necessary, the invalid provision shall be eliminated from this Agreement and the remaining provisions shall remain in full force and effect.

12.9. Construction. The wording of this Agreement is the wording selected by the parties to define their mutual agreement, and this Agreement shall not be construed or interpreted in any manner that favors any party over the other party. Further, whenever the context reasonably permits, the singular shall include the plural, the plural shall include the singular, and the whole shall include any part thereof.