THIS APPIT SALES AFFILIATE AGREEMENT (THE “AGREEMENT”) IS ENTERED INTO BY AND BETWEEN APPIT VENTURES, LLC (“APPIT”) AND YOU (“SALES AFFILIATE”) AS OF THE DATE YOU COMPLETED APPIT’S ONLINE AFFILIATE APPLICATION FORM, OR OTHERWISE PARTICIPATED IN APPIT’S SALES AFFILIATE PROGRAM (“EFFECTIVE DATE”). IF YOU HAVE SIGNED A SEPARATE AGREEMENT GOVERNING THE TERMS OF YOUR SALES AFFILIATE RELATIONSHIP WITH APPIT, THE TERMS OF THAT AGREEMENT WILL GOVERN. IF YOU HAVE NOT SIGNED A SEPARATE AGREEMENT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
For good and valuable consideration, the receipt of which is hereby acknowledged, the Parties agree as follows:
1. Introduction. Sales Affiliate desires to refer Prospects to AppIt for the purchase of AppIt’s Services.
2. Definitions. When used in this Agreement, the following capitalized terms shall have the respective meanings ascribed to them below:
2.1 “Affiliate” means a business entity now or hereafter controlled by, controlling or under common control with a Party.
2.2 “Confidential Information” means, with respect to a Party, any and all information related to the services, intellectual property and/or business of that Party, or any information disclosed on the condition that it be treated as confidential, including, without limitation, any information of which a Party becomes aware as a result of its access to and/or presence at the owner’s facilities and the terms and conditions of this Agreement.
2.3. “Customer” means a Prospect that enters into a commercial agreement with AppIt for the purchase of AppIt’s Services.
2.4 “Party(ies)” means Sales Affiliate and/or AppIt, as the context may require.
2.5 “Prospect” means any person or entity that is in discussion with Sales Affiliate or one of its Affiliates, or was in discussion with Sales Affiliate at any time during the six (6) month period immediately prior to the date of termination of this Agreement, about AppIt’s Services.
2.6 “Services” means the development of custom software applications and related support and maintenance services, and any other services generally offered by AppIt from time to time.
2.7 “Services Agreement” means a binding agreement between a Customer and AppIt for the purchase of the Services.
2.8 “Services Fee” means the fees paid by a Customer to AppIt for the Services, exclusive of sales tax.
3. Term. This Agreement is effective as of the Effective Date and shall remain in effect for an initial period of twelve months. This Agreement will automatically renew for successive twelve-month periods unless and until terminated in accordance with Section 11.
4. Appointment. Pursuant to the terms and conditions of this Agreement, AppIt hereby appoints Sales Affiliate, and Sales Affiliate hereby accepts appointment, as AppIt’s non-exclusive sales Sales Affiliate.
5. Rights and Obligations.
5.1 AppIt. AppIt shall: (a) enter into a Services Agreement with each Customer; (b) provide the Services to Prospects in accordance with the terms and conditions of the Services Agreement; (c) ensure that the Services comply in all material respects with all applicable laws, rules, and regulations of the United States; (d) conduct itself in a professional manner and perform its obligations under this Agreement with competent and adequately trained personnel; and (e) be responsible for the billing of Customers for the Services and the collection of fees or other amounts owed for the Services from Customers.
5.2 Sales Affiliate. Sales Affiliate shall: (a) market, promote and advertise the Services to Prospects; and (b) not make representations or warranties to Prospects about the Services that are inconsistent with this Agreement, or AppIt’s then current agreements and marketing materials.
5.3 Referral of Prospects. Sales Affiliate shall refer Prospects to AppIt by requiring Prospects to use a dedicated website link (“URL”), provided by AppIt, to complete the Prospects’ contact information. Prospective clients who contact AppIt directly, or are otherwise referred to AppIt without using the dedicated URL, shall not be eligible for commission, regardless of whether they were referred to AppIt by Sales Affiliate. Notwithstanding the foregoing, in the event that Sales Affiliate notifies AppIt within 15 days of the prospective client contacting AppIt, that the prospective client failed to use the dedicated URL, and this can be supported by relevant documentation or confirmation from the prospective client, the prospective client shall be considered a Prospect for purposes of this Agreement, entitling Sales Affiliate to commission.
6. Commission.
6.1 Calculation. Commission shall be calculated by applying a rate of ten percent (10%) to all payments received from Customers referred to AppIt by Sales Affiliate. AppIt may, in its sole and absolute discretion, waive, credit, defer or otherwise forgive any portion of fees billed or billable to a Customer.
6.2 Payment. Commission shall be paid to Sales Affiliate within fifteen (15) days following the end of the month during which the Customer’s payment is received.
6.3 Collection. AppIt shall be solely responsible for collecting Service Fees from Customers, and Sales Affiliate is specifically prohibited from contacting Customers about Service Fees, unless authorized to do so by AppIt.
6.4 Records; Audit Rights. AppIt shall maintain records relating to the sale of Services to Customers under this Agreement during the term of this Agreement and for a period of three years following the termination of this Agreement, and will provide copies of such documentation to Sales Affiliate upon Sales Affiliate’s written request.
7. Confidentiality. Each Party shall treat the other Party’s Confidential Information as strictly confidential and shall not use such Confidential Information except as required for the performance of such Party’s obligations under this Agreement. Neither Party shall, directly or indirectly, divulge the other’s Confidential Information or cause it to be used in competition with the disclosing Party. The Parties may disseminate portions of the other Party’s Confidential Information to those persons whose knowledge of such Confidential Information is necessary for the performance of their obligations under this Agreement solely on a “need to know” basis and shall ensure that their employees and Sales Affiliates having access to such Confidential Information are bound by appropriate confidentiality obligations consistent with this section. Neither Party shall be obligated to preserve the confidential nature of any purported Confidential Information that: (a) was previously known to the receiving Party, as evidenced by written records; (b) is or becomes available to any member of the public by other than unauthorized disclosure; (c) was or is independently developed by the receiving Party, as evidenced by written records; (d) is released for disclosure with written consent; or (e) is received from a third Party to whom the information was disclosed, to the receiving Party’s knowledge, without restriction. In addition, disclosure of the other Party’s Confidential Information shall not be precluded if the disclosure is: (i) required by law; and (ii) is in response to a valid order of a court or other governmental body, provided that the receiving Party shall first have given written notice to the providing Party and the receiving Party shall cooperate with the providing Party’s reasonable, lawful efforts to resist, limit or delay such disclosure or to obtain a protective order requiring the information so disclosed to be used only for the purpose set forth in the original order.
8. Indemnification. Each Party shall indemnify, defend and hold harmless the other and their officers, employees, Affiliates, directors, and shareholders from any losses, claims, demands, actions, causes of action, suits, costs, attorney’s fees, damages, expenses, compensation, penalties, liabilities or obligations of any kind (“Losses”) asserted by a third party arising out of, or incurred in connection with the indemnifying Party’s: (a) gross negligence or wilful misconduct; (b) failure to comply with applicable law; (c) material failure to comply with the terms of this Agreement; or (d) use of the indemnified Party’s Confidential Information in violation of this Agreement. The indemnified Party shall be entitled to participate in the defense of such claim at its own expense. For the purposes of this Section 9, “indemnifying Party” shall include, without limitation, such Party’s Affiliates and Prospects
9. Limited Warranties. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY IN CONNECTION WITH THE SERVICES OR OTHERWISE, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH REGARD TO ITS SYSTEMS, PRODUCTS AND SERVICES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; OR (B) ANY WARRANTIES OF NON-INTERFERENCE OR NON- INFRINGEMENT. ANY AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED BY THE APPLICABLE PARTY AND WAIVED BY THE OTHER PARTY. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, THE SERVICES AND ANY RELATED PRODUCTS PROVIDED TO CUSTOMERS ARE PROVIDED ON AN “AS-IS, WITH ALL FAULTS” BASIS.
10. Limitation of Liabilities. WITH THE EXCEPTION OF CLAIMS ARISING UNDER OR A BREACH OF SECTION 8 OR A CLAIM FOR INDEMNITY PURSUANT TO SECTION 9, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, INTERRUPTION OF BUSINESS OR LOSS OF DATA, OR FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED IN STATUTE, CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN ADDITION, IN NO EVENT SHALL APPIT BE LIABLE TO SALES AFFILIATE FOR AGGREGATE DAMAGES IN ANY 12-MONTH PERIOD IN EXCESS OF THE AMOUNT OF COMMISSIONS PAID BY APPIT TO SALES AFFILIATE IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.
11. Termination and Additional Remedies.
11.1 In addition to any other remedies at law or in equity to which they are entitled, each Party reserves the right to terminate this Agreement if the other Party: (a) fails to cure a material breach of this Agreement within 30 days following receipt of written notice to do so; (b) is the subject of a dissolution or bankruptcy action; (c) suffers the appointment of a receiver or trustee; or (d) commits any act with the intent to defraud the other Party. Termination of this Agreement shall not relieve either Party of any payment obligations incurred prior to such termination.
11.2 Either Party may terminate this Agreement with or without cause on 30 days’ prior written notice to the other Party.
11.3 Upon termination or expiration of this Agreement for any reason, Sales Affiliate shall: (a) immediately cease promoting, advertising and marketing the Services; (b) immediately cease the replication and distribution of any promotional, advertising or marketing materials regarding the Services, including the use of AppIt’s name and logo in materials; (c) return to AppIt all copies of the promotional, advertising and marketing materials regarding the Services in the possession or under the control of Sales Affiliate; and (d) destroy AppIt’s Confidential Information and, upon request, sign a certification attesting to the foregoing.
11.4 The termination of this Agreement shall not relieve AppIt of its obligations to pay Commissions due as a result of Service Fees billed to Customers after the termination date.
12. Intellectual Property.
12.1 Sales Affiliate agrees that all copyrightable works, notes, records, drawings, designs, compositions, inventions, works of authorship, computer programs and code, formulae, ideas, processes, techniques, systems, platforms, integrations, know-how and data, improvements, developments, discoveries and trade secrets, whether or not patentable, that are included with or incorporated in the Services (the “AppIt IP”) are the sole property of AppIt.
12.2 Sales Affiliate shall not: (a) modify, create derivative works from, distribute, or sublicense the AppIt IP; (b) use the AppIt IP or in any way that allows third parties (except its legitimate Prospects and the end users of such Prospects) to use or benefit directly from the AppIt IP; or (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive any of the source code embedded in the AppIt IP.
13. General Provisions.
13.1 Relationship of the Parties. The relationship of the Parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
13.2 Governing Law. This Agreement shall be governed in all respects by the laws of the State of Colorado, USA excluding the application of its conflict of laws principles that would require application of the laws of a different state. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.
13.3 Dispute Resolution. The Parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement that are not resolved by their mutual agreement shall be submitted to final and binding arbitration, in English, before Judicial Arbiter Group (JAG) in Denver, Colorado, USA. The provisions of this Section 13.3 may be enforced by any Court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the party against whom enforcement is ordered.
13.4 Notices. All notices required in connection with this Agreement will be in writing (email acceptable) and deemed effectively given (a) upon personal delivery to the party to be notified; (b) on the date on which such notice is delivered by facsimile or email; or (c) one (1) business day after deposit with a nationally/internationally recognized overnight courier that provides tracking and verification of delivery. All notices shall be sent to the signatory of this Agreement at the address set forth above or such other address as either party may specify in writing.
13.5 Force Majeure. Neither Party shall be liable for any loss or damage due to causes beyond its control, including earthquake, war, terrorism, fire, flood, power failure, acts of God or other catastrophes.
13.6 Injunctive Relief. It is understood and agreed that, notwithstanding any other provision of this Agreement, breach of the provisions of Section 7 will cause the non-breaching party irreparable damage for which recovery of money damages would be inadequate, and that the non-breaching party shall therefore be entitled to obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all remedies available at law, without the requirement of having to post a bond or other form of security.
13.7 Waiver. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
13.8 Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
13.9 Construction. The headings used for the sections of this Agreement are for information purposes and convenience only and in no way define, limit, construe or describe the scope or extent of the sections. The words such as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The word “including” or any variation thereof means “including, without limitation” and will not be construed to limit any general statement that such word or variation thereof follows. The language used in this Agreement will be deemed to be the language chosen by the Parties to express the Parties’ collective mutual intent, and no rule of strict construction will be applied against any party.
13.10 Assignment. Neither Party shall assign or transfer any interest, obligation or right under this Agreement without the prior written consent of the other Party (whose consent shall not be unreasonably withheld), and any such attempt shall be null and void, except that (i) AppIt may assign this Agreement in the event of a stock sale, merger or sale of all or substantially all of its assets to a third party; and (ii) either Party may assign any of its interest, obligations or rights under this Agreement to an Affiliate, provided that the assigning Party remains principally liable for the acts and omissions of the assignee. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties and their successors and assigns. Notwithstanding the foregoing, AppIt shall have the right to assign its interest, obligations and rights under this Agreement to a subsidiary or branch office responsible for AppIt operations in a territory other than the United States.
13.11 Attorneys’ Fees. In any legal proceeding between the Parties, the prevailing party shall be entitled to recover attorneys’ fees and expenses.
13.12 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, any prior or collateral agreements with respect to the subject matter hereof with the exception of any prior confidentiality agreements between the Parties. This Agreement may only be changed by mutual agreement of authorized representatives of the Parties in writing.