Referral Agreement

1.1 Partner may refer a Prospect (as defined below) to Userlane, by submitting the prospect with all required information via the Online referral form accessible through https://www.userlane.com/about/partners/ (“Referral”).  “Prospect” shall mean a potential customer that has expressed to Partner a genuine interest in obtaining Userlane’s full suite of Digital Adoption Solutions and SaaS Services, for such potential customer’s own internal business use, and not for resale, distribution, license or offering services to third parties, and that as of Partner’s submission of the Referral, such potential customer (i) is referred by Partner to Userlane pursuant to this Agreement and Partner is not acting as the distributor or reseller for Prospect, (ii) is not a current customer of Userlane or any reseller, distributor or agent of Userlane, (iii) is not in communications, discussions or negotiations with Userlane or any reseller, distributor or agent of Userlane for any of Userlane’s Services in particular SaaS Services, (iv) is not the subject of a prior referral under Userlane’s Referral Program and (v) is not rejected by Userlane in its discretion for, as examples, failing to meet Userlane’s credit requirements, being on a government-issued list of restricted or prohibited parties, or being in a territory in which Userlane has previously granted an exclusive relationship to another channel partner.

1.2 Accepted or Rejected Referral.  Userlane will accept or reject a Referral via email within a reasonable time of submission of such Referral.  Userlane generally accepts a Referral that is for a Prospect meeting the qualifications set forth in Section 1.1, and is complete and accurate.  Userlane will be under no obligation to accept any Referral and may reject or decline to accept any Referral for any commercially reasonable reason as determined by Userlane in its discretion.  A Referral will be effective upon Userlane’s acceptance of such Referral to Partner via email, or other forms of communication that may be acceptable to Partner and Userlane.  Once a Referral is accepted by Userlane, Partner agrees to introduce Userlane to Prospect via email, personal meeting or conference call within 5 business working days of Userlane’s acceptance of such Referral, unless Partner has advised to connect directly.  Userlane is responsible for the marketing and sales process with Prospect, and upon request, Partner agrees to reasonably support Userlane in the sales process to Prospect, including arranging meetings or calls with Prospect.  Partner agrees to comply with Userlane’s Privacy Policy regarding all matters involving privacy of Prospect’s information.  Partner consents for Userlane, its affiliates and its channel partners to use and share the information of Prospect and Partner provided by Partner.

1.3 Referral Fees.  Subject to Partner’s compliance with this Agreement, Userlane will pay Partner 10% of the first 12 months of subscription fees (minus taxes, credits, write-offs, refunds, returns or charge backs) actually received from Prospect for the SaaS Services provided under a binding written agreement with such Prospect (a “Customer Agreement”) but excluding fees for professional services, implementation, support, training, subscription renewals or other services (“Referral Fees”), provided that such Prospect has entered into a Customer Agreement within six months following the date the Referral for such Prospect submitted by Partner was accepted by Userlane.  Userlane will pay Partner the Referral Fees in Euros within 30 days of Userlane’s actual receipt of payment from Prospect.  Partner agrees to promptly refund Userlane any overpayments (e.g., due to refunds or returns) and authorizes Userlane to deduct any overpayments from future payments under the Prospect Referral Program to Partner.  The Referral Fees do not include any taxes, duties, fees or other amounts assessed or imposed by any government authority, and are subject to any tax deductions or withholdings required by applicable law.  Partner is responsible for paying all such taxes, duties, fees or other amounts other than taxes imposed on Userlane’s income.  Partner will pay or reimburse Userlane for all such amounts upon demand, or provide evidence of payment or tax exemption.  Userlane shall have sole discretion to refuse to provide any SaaS Services to Prospect without liability to Partner.

2.1 Partner shall send an invoice regarding the Referral Fee including all necessary information according to the applicable laws to Userlane.

2.2 Compliance.  Partner hereby represents and warrants that (a) Partner has complied with all applicable privacy laws for obtaining Prospect’s information and providing it to Userlane, (b) Userlane, its affiliates and its channel partners are permitted to contact Prospect and share Prospect’s information for sales and marketing of the SaaS Services to Prospect, and (c) Userlane, its affiliates and its channel partners may disclose that Partner is the origin of the Referral to Prospect and to share Partner’s information with Userlane’s affiliates and channel partners.

2.3 Partner Business Practices.  Partner will (a) conduct business in accordance with the highest business standards, and not engage in any conduct that could reflect adversely upon the SaaS Services, business or goodwill of Userlane, (b) comply with all applicable laws, rules and regulations, including any applicable anti-corruption and privacy laws, (c) not make any deceptive, misleading or unethical statements with regard to Userlane and/or the SaaS Services, (d) not make representations, warranties or guarantees of any kind to any person or entity regarding the specifications, functionality, features or capabilities of the SaaS Services that are inconsistent with Userlane’s published documentation, and (e) not send unsolicited electronic messages to multiple unrelated recipients in promoting the SaaS Services, or otherwise engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement.

2.4 Costs and Expenses.  Each party is responsible for all costs and expenses incurred in the performance of such party’s obligations under this Agreement, except as expressly provided in this Agreement.

2.5 Partner shall not use (and has not used), directly or indirectly, in whole or in part, in connection with this Agreement or as part of its corporate, business or personal name, any signature, monogram, logo, trademark, service mark, or trade name (a “Mark”) that is now or may hereafter be owned, licensed or used by Userlane (a “Userlane Mark”), except in the manner and to the extent approved in advance in writing by Userlane, which such approval Userlane may withdraw at any time for any reason. Partner shall discontinue any approved use of an Userlane Mark immediately upon termination or expiration of this Agreement, and thereafter shall not use any Mark which, in the reasonable judgment of Userlane, so nearly resembles any Userlane Mark that confusion or uncertainty by a third party may reasonably result therefrom. Partner hereby expressly disclaims any and all right, title and interest in and to all Userlane Marks, whether or not used by Partner. All uses of any Userlane Mark shall insure solely to the benefit of Userlane.

2.6 All right, title and interest in and to the Platform and any copyright, trademark, trade secret, patent or other proprietary rights (collectively “Intellectual Property Rights”) in the Platform shall be owned by Userlane. Partner has no rights to use the Platform, and has no rights to copy, modify, change, de-compile, disassemble, reverse compile or reverse engineer the Platform. Partner agrees that any suggestions, recommendations, ideas, work product or concepts provided by Partner in connection with this Agreement, and any Intellectual Property Rights associated with the same shall be owned by Userlane, without any obligation by Userlane to compensate Partner for the same. Partner agrees to execute any and all documents necessary to perfect Userlane’s ownership of the Intellectual Property Rights as set forth in this Section 2.6.

A party (the “Disclosing Party”) may disclose during the Term to the other party (the “Receiving Party”) the Disclosing Party’s confidential information that is marked or identified as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure (the “Confidential Information”).  All Confidential Information remains the sole and exclusive property of the Disclosing Party.  The Receiving Party agrees to protect and preserve the confidentiality of the Disclosing Party’s Confidential Information from unauthorized disclosure or use with at least the same degree of care that it applies to its own confidential information, but no less than reasonable care, and not to use or disclose to any person or entity any of the Disclosing Party’s Confidential Information except to perform this Agreement.  The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if the Receiving Party can document that such information (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party free from any obligation of confidence, (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions, (c) is, or through no fault of the Receiving Party has become, generally available to the public or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.  In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or a court or other judicial or administrative body, provided that the Receiving Party (to the extent legally permitted) notifies the Disclosing Party of such compelled disclosure promptly and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.  All confidentiality obligations created by this Section shall remain in force and effect for the Term plus two years.

This Agreement is not a commitment by either party to work exclusively with the other party.  Partner’s relationship with Userlane during the Term is that of an independent contractor.  Nothing in this Agreement shall be deemed to constitute a partnership, joint venture or franchise between the parties.  Partner will not have, and will not represent that it has, any power, right or authority to bind Userlane, or to assume or create any obligation or responsibility, express or implied, on behalf of Userlane or in Userlane’s name.  Userlane reserves the right: (i) to solicit, contact, and engage any client, whether or not referred by Partner and with no obligation to Partner whatsoever, so long as such client does not constitute a Referral; and (ii) to engage with other client referral lead providers on a nonexclusive basis. To the maximum extent permitted by applicable law, Userlane reserves the right to change or cancel this program at any time, at its sole discretion. Participants agree to abide by these rules and by the decisions of Userlane, which are final, binding and non-appealable, on all matters. Userlane is not responsible for lost, misdirected or delayed referrals.

5.1 Within the scope of this Agreement, a party shall only be liable for damages (a) caused by this party or its legal representatives or vicarious agents intentionally or through gross negligence or (b) resulting from injury to life, body or health caused by a breach of duty by this party or one of its legal representatives or vicarious agents. A party shall also be liable (c) if the damage is caused by the breach of an obligation of this party, the fulfillment of which makes the proper execution of this Agreement possible and on the compliance of which the other party regularly trusts and may rely (cardinal obligation).

5.2 In the cases referred to in paragraph 1 of this section, letters (a) (b) and (c), the Partner shall be liable within the scope of the statutory liability.

5.3 In the cases referred to in paragraph 1 of this section, letters (a) and (b), Userlane shall be liable within the scope of the statutory liability. In all other cases, Userlane’s aggregate liability shall be limited to the damage foreseeable and typical for this type of contract. The parties agree that a maximum damage of 10.000 EUR per case of damage is foreseeable and typical for this type of contract. If Partner is at risk of damage that may exceed this amount, Partner is obligated to notify Userlane immediately. No claim against Userlane may be brought more than one year after the claim has arisen.

5.4 In cases other than those referred to in paragraph 1, Userlane’s liability shall be excluded.

5.5 In particular, subject to the foregoing except for breach of confidentiality or Partner’s compliance with applicable laws, in no event shall either party be liable for any indirect, punitive, special, exemplary, incidental or consequential damages of any kind, whether based on contract, tort or any other legal theory, even if advised of the possibility of such damages. 

5.6 The liability provisions in the preceding paragraphs shall also apply to the personal liability of the parties representatives, employees and vicarious agents.

5.7 Insofar as liability arises under the Product Liability Act from the assumption of a guarantee or due to fraudulent misrepresentation, it shall remain unaffected by the liability regulations above.

5.8 The limitations of liability and exclusions of damages in this Section form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.

5.9 Except to the extent expressly provided for in this Agreement, Userlane makes no representtions or warranties under this Agreement to Partners or its Prospects and expressly disclaims and excludes all warranties, whether statutory, express or implied, including, but not limited to, implied warranties of merchantability, non-infringement, or fitness for a particular purpose. Without limitation, Userlane specifically disclaims any representation or warranty regarding: (I) the amount of revenue that Partner may receive under or in connection with this Agreement; and (II) any economic or other benefit that Partner might obtain through its participation in this Agreement.

The term of this Agreement (the “Term”) will commence on the date that Partner submits a Referral to Userlane and shall terminate upon the earlier of (a) the payment of the Referral Fees to Partner for such Referral  or (b) the rejection of such Referral by Userlane, or (c) Partner signs up to another Governing Partner agreement .  This Agreement may be terminated by a party upon written notice to the other party (i) if the other party breaches a material term of this Agreement that is uncured within 15 days after delivery of notice of such breach, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors not dismissed within 30 days. The right to terminate for good cause shall remain unaffected. Partner may be entitled to Referral Fees pursuant to this Agreement only on a referral for which a Referral is accepted by Userlane pursuant to this Agreement prior to this Agreement’s termination date.  Immediately upon termination of this Agreement, each party will promptly return to the other party all of the other party’s Confidential Information.  Sections 2 through 7 will survive the termination of this Agreement.

7.1 Userlane will only make a binding offer to enter into an agreement or accept the Partner’s binding offer if the Partner is a company or a person acting in the course of his trade or profession.

7.2 Entire Agreement.  This Agreement is the parties’ entire agreement with respect to its subject matter, and supersedes any prior understandings or agreements regarding such subject matter.  Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived with the written consent (e-mail shall suffice) of duly authorized representatives of the parties.  Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights or obligations.  Userlane does not accept any deviating, conflicting or supplementary general terms and conditions.  This shall also apply if the inclusion is not expressly objected to.

7.3 Assignment.  Userlane may assign or transfer this Agreement, in whole or in part, at any time.  Partner may not assign or transfer this Agreement, or delegate its duties or responsibilities under this Agreement, by business combination, operation of law or otherwise without Userlane’s prior written consent.  Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and permitted assigns.

7.4 Governing Law; Dispute Resolution.  This Agreement shall be governed by the laws of Germany.  This Agreement shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  Any legal suit, action or proceeding arising out of or relating to this Agreement must be instituted in the courts of Munich and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

7.5 Severability. If any provision of this Agreement is held by a court to be invalid or unenforceable, then such provision shall be construed, as nearly as possible, to reflect its intentions, with all other provisions remaining in full force and effect.