Referral Partner Agreement for Resource Scheduler

Last updated: May 14, 2020

As used in this Agreement, the following terms shall have the meanings set forth below:

“Partner” or “You” means the person or company (including Company Name and other information) detailed in the Form submitted to Lumagate.

“Lumagate” means Lumagate, Inc., a USA, State of Delaware company.

1. LICENSE. Subject to this Agreement and its terms, Lumagate hereby grants to Partner a free, non-exclusive, non-transferable and revocable license (“License”) to market the Lumagate Service to Referrals, and to use the Lumagate trademarks, logos and URLs provided by Lumagate and listed in Exhibit A below (“Licensed Marks”, as may be amended by Lumagate from time to time), and associated marketing materials for the sole purpose of promoting the Lumagate Service (collectively, “Marketing Materials”).

2. Unauthorized Representations; No Authority. Referral Partner shall refrain from making any representations, warranties or guarantees to Prospective End Customers or to the trade with respect to the specifications, features or capabilities of Lumagate’s product offerings that are deceptive, misleading or otherwise inconsistent with the literature distributed by Lumagate or its suppliers with respect thereto. Referral Partner is not the agent of Lumagate and has no authority to execute contracts on Lumagate’s behalf. Referral Partner agrees to take all commercially reasonable steps to preserve and protect the goodwill and reputation of Lumagate. Referral Partner shall not engage in any conduct which may damage Lumagate’s reputation. This Agreement is non-exclusive. The Parties understand and agree that Lumagate has the right to solicit Prospective End Customers directly and to appoint any number of additional representatives or agents to provide leads to Lumagate.

3. No Waiver. Either Party’s failure to enforce the other Party’s strict performance of any provision of this Agreement will not constitute a waiver of the first Party’s right to subsequently enforce such provision or any other provision of this Agreement.

4. Limited Warranty. Both Parties warrant that at all times during the Term they will comply with all applicable laws, regulations, codes of practice, as well as this Agreement, Privacy Policy and Guidelines. During the Term and after termination of this Agreement for any reason whatsoever, Partner expressly undertakes not to do anything that might reasonably be expected to damage the business, interests or reputation of Lumagate, Inc and will not make, publish or allow to be made or published any disparaging remarks concerning Lumagate, Inc, its representatives, or software.

5. Disclaimer of Warranty. Other than Lumagate’s express warranty under the previous section 4, Lumagate makes no other warranty, express or implied, of any kind and Lumagate expressly disclaims any and all warranties and conditions, including but not limited to any implied warranty of merchantability, fitness for a particular purpose, availability, security, title, and/or non-infringement of the subject matter of this Agreement.

6. Limitation of Liability. EXCEPT FOR Referral Partner’S BREACH OF SECTION 2 (“UNAUTHORIZED REPRESENTATIONS; NO AUTHORITY”) OR SECTION 10 (“COMPLIANCE”), (i) NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY THEREOF AND (ii) THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, SHALL BE LIMITED TO THE LESSER OF $50 OR THE TOTAL AMOUNT PAID OR PAYABLE BY THE OTHER PARTY UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO LIABILITY.

7. Indemnification. Partner will indemnify, defend and hold Lumagate and its subsidiaries, affiliates, officers and employees (the “Lumagate Indemnified Parties”) harmless from and against any and all costs, liabilities, losses and expenses (including but not limited to reasonable attorneys’ fees) resulting from any claim, suit, action, demand or proceeding brought by any third party against the Lumagate Indemnified Parties arising from any of the following: (a) a breach of the Agreement by Partner; (b) the negligence, gross negligence or willful misconduct of Partner or its employees, agents or contractors; or (c) a failure by Partner or its employees, agents, contractors or invitees to comply with the laws and regulations referenced hereinbefore.

8. Force. A Party shall not be obliged to perform any of its obligations herein if it is prevented from doing so by a situation of force majeure. “Force majeure” events shall include events beyond the reasonable control of the Parties, including acts of God, acts of government, acts of nature, strikes or riots, as well as improper performance by Lumagate’s suppliers or defects in objects, materials or software of third parties. If a situation of force majeure lasts for more than thirty (30) days, either Party may terminate this agreement upon written notice to the other Party.

9. Entire Agreement. This Agreement represents the entire agreement among the Parties regarding the subject matter thereof and the Parties’ respective obligations and commitments herein. No other documents, or oral or written agreements among the Parties reflect in any way on the agreements laid out in this Agreement. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement.

10. Compliance. Referral Partner shall comply with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act, and the anti-corruption laws of other countries, to the extent applicable. Referral Partner hereby represents and warrants that, in its performance under this Agreement Referral Partner has not, and will not at any time, directly or indirectly (through a subcontractor or other third party), pay, offer, give or promise to pay or give, or authorize the payment of, any monies or any other thing of value to influence the improper performance of any individual government officials and employees of state-owned enterprises. Referral Partner shall promptly inform Lumagate in writing upon becoming aware of any violations of laws in connection with this Agreement. Referral Partner hereby acknowledges and agrees that any violation by Referral Partner of this Section will constitute a material breach of this Agreement. In the event of such a violation, Lumagate will have the right to terminate this Agreement, without any liability whatsoever to Referral Partner, immediately upon providing written notice of termination to Referral Partner. Termination of this Agreement by Lumagate under this section shall be in addition to, and not in lieu of, Lumagate’s other legal rights and remedies.

11. General Provisions. The Parties are independent contractors. Referral Partner shall not have, and shall not represent that it has any authority to assume or create any obligation, expressed or implied, on behalf of Lumagate.

12. Non-Disparagement. During the Term and for five (5) years thereafter, Partner agrees that it will not disparage Lumagate or any of its officers, directors or employees or otherwise take any action that could reasonably be expected to adversely affect Lumagate’s reputation. For purposes of this Agreement, “disparage” shall mean any negative statement, whether written or oral, about Lumagate or any its officers, directors or employees. The Parties agree and acknowledge that this non-disparagement provision is a material term of this Agreement, the absence of which would have resulted in the Lumagate refusing to enter into this Agreement.

13. Parties’ Expenses. The Parties shall each carry and pay all their respective costs, charges and expenses incurred by it in the performance of this Agreement, except as otherwise may be agreed-upon by the Parties in writing in advance.

14. Notices. All notices relating to this Agreement shall be delivered via email (with return receipt) or next-day mail to the addresses provided in the partner application form.

15. Governing Law; Jurisdiction; Dispute Resolution. This License shall be deemed to take place in the State of Delaware, USA and shall be governed by and construed in accordance with the laws of the State of Delaware. Any disputes arising from this License shall be adjudicated in the courts of the State of Delaware.

Exhibit A

Permitted Lumagate marks for use by Partner:

Logos: Licensed Marks, to be provided to Partner by Lumagate.

Marketing Copy: Brochures and descriptive text for use on partner websites and marketing emails to referral customers, to be provided to Partner by Lumagate.