NetDocuments Referral Partner (RP) Agreement

THIS ONLINE REFERRAL PROGRAM (RP) AGREEMENT (THIS “AGREEMENT”) STATES THE TERMS AND CONDITIONS OF NETOYAGE CORPORATION, A UTAH CORPORATION DOING BUSINESS AS NETDOCUMENTS, ENTERING INTO A BUSINESS RELATIONSHIP WITH RP, WHO IS KNOWLEDGEABLE AND INFLUENTIAL IN MARKETS WHERE THE NETDOCUMENTS SERVICE WILL PROVIDE A BUSINESS SOLUTION, AND WHERE RP WILL ASSIST NETDOCUMENTS IN FINDING AND SERVICING CUSTOMERS IN THE RESPECTIVE MARKETS. 

NOW, THEREFORE, in consideration of the mutual covenants set forth below and for other good and valuable consideration, the parties agree as follows:

Definitions

“NetDocuments Service” means those hosted Web services, more fully described and available at http://www.netdocuments.com, and which include applications software, updates, maintenance, and Help Desk Support offered by NetDocuments.

“NetDocuments Site” means the NetDocuments branded Web site located at  HYPERLINK "http://www.netdocuments.com" http://www.netdocuments.com, including NDConnect.

“Customers” means users of the NetDocuments Service, including all service accounts (internal and external) purchased by a Customer and subscribed to the NetDocuments Service and approved by NetDocuments.

“Software Updates and Maintenance” means those new features and functionalities included, from time to time, in the NetDocuments Service.  It is Customer’s responsibility to be aware, via the NetDocuments Web site, email messages, preview servers, online training, and newsletters and accept when available any and all Software Updates and Maintenance.

  “Scheduled Maintenance” means a planned, scheduled, and advertised period of time, usually occurring during evenings or week-ends, when the NetDocuments Service is not available to Registered Users. Software updates and maintenance, as well as hardware and network updates, shall be performed during Scheduled Maintenance periods.

“Service Outage” means a period of at least ninety (90) minutes in which the NetDocuments Service is not available to Registered Users. 

“Commission” means payment from NetDocuments to RP for a Customer to whom RP referred NetDocuments and the referral resulted in the sale of subscriptions to the NetDocuments Service.  

NetDocuments Rights and Obligations

NetDocuments shall provide the NetDocuments Service to Customers who are sold subscriptions by RP and who have executed a NetDocuments Service Agreement. At the discretion of NetDocuments the NetDocuments Service may be modified from time to time to include additional features and modifications. NetDocuments shall, via email, Web-based seminars, and the NetDocuments Site keep RP and Customers fully and timely informed of service enhancements, new versions of the NetDocuments Service offered hereunder, and developments that may affect Customers’ use of the NetDocuments Service.

NetDocuments shall, at its sole expense, provide the NetDocuments Service, including hardware, software, infrastructure, connectivity, engineering, Help Desk Support, and customer service for Customers who have subscribed to the NetDocuments Service offered hereunder.

NetDocuments shall provide Help Desk Support to Customers as more fully described on the NetDocuments Site. 

RP Rights, Obligations and Qualifications

RP shall complete and have an Application accepted by NetDocuments.

RP shall, at its sole expense; find and refer prospective Customers to NetDocuments.

RP shall execute an RP Agreement.

RP may, after submitting an Application, having the Application and a marketing plan accepted by NetDocuments, posting three (3) references on NDConnect, and having an employee pass a technical exam, be eligible for BSP (Business Services Provider) partner status (requires a BSP Agreement).

RP may promote NetDocuments during the term of this Agreement as follows:

Subject to approval by NetDocuments, issue a press release.

Grant the right for NetDocuments to reference RP in NetDocuments’ marketing materials and on NetDocuments Site; and

Announce the availability of the NetDocuments Service in RP’s relevant marketing and promotional materials.

The relationship between NetDocuments and RP created by this Agreement and the rights and obligations hereunder shall be confidential and non-exclusive to both parties. 

In order for a commission to be paid for a referral, the referral must be in writing (email okay) and must be a new prospective NetDocuments Customer, i.e. not in NetDocuments’ CRM, and close within twelve (12) months of identification. Commission payments shall be made on the following schedule: ten percent (10%) on net receipts of subscriptions to the NetDocuments Service for the first twelve (12) months following the Effective Date of a NetDocuments Service Agreement, net of refunds actually given, credits provided, or royalties paid for Third-Party Services.  The Commission shall be paid within thirty (60) days of receipt by NetDocuments of the first Subscription Fee from a Customer.  In order to qualify for a Commission, RP must comply with the following requirements: (i) have made an explicit, written referral of Customer to NetDocuments prior to contact of the Customer by NetDocuments; (ii) have the written or documented verbal endorsement and support of prospective Customer during their evaluation of the NetDocuments Service; (iii) in conjunction with NetDocuments, remain actively promoting and selling NetDocuments to Customer throughout the sales process until Customer is registered for the NetDocuments Service; (iv); a Customer for which a Finder’s Fee is paid to RP must have executed a NetDocuments Service Agreement with NetDocuments. In addition to the aforementioned requirements, NetDocuments must acknowledge and accept in writing any prospective Customers that RP refers to NetDocuments.   The NetDocuments Price List is available at the NetDocuments web site.

Registration and Ownership

Registration information is considered highly confidential and will only be used for customer support issues, communication of NetDocuments Service enhancements and NetDocuments Service alerts. NetDocuments shall not disclose registration information to any third party, except in the form of statistical data; or sell, rent, sublicense, or otherwise grant to any third party independent rights in or to registration information.

NetDocuments will retain all right, title, and interest (including copyrights and other proprietary or intellectual property rights) in the NetDocuments Service, all legally protectable elements, or derivative works thereto.

Subject to the then-current privacy policy and Terms of Use located at the NetDocuments Site, documents displayed on or by means of the NetDocuments Service are the sole property of Customers who initially insert such documents into a repository of the NetDocuments Service and are not the property of either party hereto.

Term and Termination

This Agreement shall have an initial term of one (1) year (“Initial Term”) and shall thereafter be renewable for successive annual terms upon written notice (email okay) evidencing mutual agreement to continue this Agreement for another year.   At any time during the Initial Term or successive terms, this Agreement is subject to at-will termination by either party, which shall be effective upon receipt of a written notice of termination by the terminating party.  

Notwithstanding Section 5.1 above, this Agreement may be terminated by either party for cause, whether during the Term, in the event the other party: (i) materially breaches this Agreement or, in its performance hereunder, violates applicable law; (ii) files a voluntary petition in bankruptcy, or has an involuntary petition in bankruptcy filed against it which remains in effect for sixty (60) or more days; or (iii) is declared insolvent, makes an assignment for the benefit of creditors, appoints a receiver, conservator, or trustee to operate its business, or liquidates all or substantially all of its business assets, or the equivalent of any of the foregoing.  The party terminating this Agreement for cause shall give the other party prior written notice specifying all reasons for the termination.  Termination for cause shall take effect on the thirty-first (31^st) day following receipt of a written notice from the other party, unless the other party prior thereto fully corrects the reason(s) for termination set forth in the notice.

After written notice of termination has been given (whether for cause or at will), the parties shall do the following:

Within thirty (30) days after the Termination Date, RP shall (i) dismantle any and all links on its Web site pages to and from NetDocuments Site; and (ii) remove any branded feature of NetDocuments or the NetDocuments Service from its Web site pages; and

Within thirty (30) days after the Termination Date, NetDocuments shall (i) Dismantle any and all links (including links on any of the NetDocuments Service pages and NetDocuments Site) to and from RP’s Web site pages, and (ii) remove any and all RP’s brand features from the NetDocuments Site.

In the event this Agreement is terminated (whether at will or for cause), all license rights herein granted by NetDocuments to RP and by RP to NetDocuments shall be deemed automatically terminated and fully re-conveyed to the licensor thereof on the thirty-first (31st) day after the Termination Date.

Title/Ownership Rights

NetDocuments shall retain all right, title, interest, and intellectual and other proprietary rights in and to the NetDocuments Service. 

RP shall neither have nor at any time attempt to acquire any proprietary interest or other rights in and to the NetDocuments Service.

Except as otherwise provided in this Agreement, RP shall not copy, modify, sublicense, distribute, rent, lease, convey, translate or disassemble any portion of the NetDocuments Service and related technology.

Confidentiality

Pursuant to this Agreement, each party (“Receiving Party”) may, from time to time, receive or have access to certain information (whether oral or written), belonging to, and provided by, the other party (“Disclosing Party”) and including without limitation: the terms and conditions of this Agreement and the Disclosing Party’s methods of operation, products, services and various financial data.  Without regard to whether said information would be deemed the trade secrets of, or confidential or otherwise important to, the Disclosing Party under applicable law, both parties hereto acknowledge and agree that said information provided or available hereunder shall conclusively be deemed confidential to the Disclosing Party (collectively, “Confidential Information”).  

The Receiving Party shall protect any Confidential Information received from the Disclosing Party:  (i) by limiting the disclosure of same to its employees, and/or authorized agents or independent contractors, and then only to the extent necessary for them to perform hereunder; and (ii) by exercising reasonable care to prevent unauthorized use or disclosure, which shall in no event be less than the same degree of care it uses to protect its own information of like importance from unauthorized use or disclosure.  

The Receiving Party shall only use Confidential Information received from the Disclosing Party for the purposes, and in furtherance of its performance, authorized under this Agreement.

Notwithstanding the foregoing, either party may disclose Confidential Information received hereunder:  (i) when necessary in any legal proceedings based upon provisions of this Agreement; (ii) pursuant to a mandatory discovery request, subpoena, court order or other order of a competent authority, after the party receiving same has given prompt written notice thereof to the other party; (iii) to either party’s own legal counsel or accountants; (iv) in any public reporting documents, but only to the extent required by applicable law; and (v) to the extent reasonably necessary to the preparation of any tax, legal, accounting or claim documentation.

Any individual who is provided access to the terms and conditions of this Agreement shall be advised of the confidential nature of this Agreement.

As used herein, Confidential Information shall not include any information, which:  (i) is already known by the Receiving Party at the time disclosed by the Disclosing Party; (ii) is or becomes available through public sources apart from any unauthorized disclosure by the Receiving Party; or (iii) is obtained by the Receiving Party from a third party who has the right to disclose same.

Fees, Charges, Records, and the Use of NetDocuments

NetDocuments will pay RP a Commission as more fully described in paragraph 1.10 of this Agreement.  

NetDocuments reserves the right to change the NetDocuments Price List at any time.  It is RP’s responsibility to be informed of pricing, which is on the NetDocuments web site.

The parties shall maintain complete and accurate accounting records, in accordance with generally accepted accounting practices, to support and document amounts due and will retain such records for three (3) years after payment is made.  A party shall, upon written request of the other party, provide audit access to such records to a mutually acceptable independent accounting firm that is chosen and compensated by the other party.  Such access shall be granted only during normal business hours and no more frequently than once in each calendar year.  The audit shall not interfere with the audited party’s normal business activity.  The accounting firm shall be required to hold all information received during the audit in confidence and will be authorized to report to the other party only the amount of payments actually due under the Agreement for the period examined.  

Warranties and Representations

NetDocuments Warranties and Representations.

NetDocuments warrants and represents that it has all right, title, and interest in and to (i) the NetDocuments Service offered and available to Customers hereunder; and (ii) the NetDocuments brand features and that it has the right, power and authority to enter into and to perform in accordance with this Agreement.

NetDocuments warrants and represents that the NetDocuments Service does not infringe any patent, copyright, trade secret, trademark, service mark or other intellectual property right of any third party.

NetDocuments warrants and represents that the NetDocuments Service made available hereunder to RP and Customers shall be free from any material defects.

NetDocuments agrees to indemnify, defend, and hold harmless RP from all claims, suits, expenses (including attorneys’ fees and expenses), losses, liabilities, damages, and settlements arising out of, or in connection with:  (i) any breach by NetDocuments of this Agreement, including without limitation any alleged breach of one or more of the above warranties; or (ii) the NetDocuments Service provided hereunder, including without limitation any alleged breach of any warranty offered by NetDocuments to Customers of the NetDocuments Service hereunder, except where such unavailability is due to malfunction, maintenance or causes beyond NetDocuments’ control as described in Section 2.4 above. 

RP Warranties and Representations

RP warrants and represents that it has all right power and authority to enter into, and to perform in accordance with, this Agreement.

RP agrees to indemnify, defend, and hold harmless NetDocuments from all claims, suits, expenses (including attorneys’ fees and expenses), losses, liabilities, damages and settlements arising out of, or in connection with any breach by RP of this Agreement, including without limitation any alleged breach of one or more of the above warranties. 

Limitation of Liability

Disclaimer of Warranties.  EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE IN THIS AGREEMENT, BOTH PARTIES HEREBY DISCLAIM ALL OTHER WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING AND WITHOUT LIMITATION, THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Special Damages.  NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES INCURRED BY SUCH PARTY (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR GOODWILL OR ANTICIPATED PROFITS OR LOST BUSINESS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED THAT THE FOREGOING DOES NOT LIMIT EITHER PARTY’S OBLIGATION TO INDEMNIFY THE OTHER PARTY UNDER SECTION 8 FOR SUCH DAMAGES THAT MAY BE INCURRED BY A THIRD PARTY.

Best Commercial Efforts to Contract with Referrals.  NETDOCUMENTS SHALL USE ITS BEST COMMERCIAL EFFORTS TO CLOSE BUSINESS REFERRALS FROM RPS.  HOWEVER, NETDOCUMENTS MAKES NO REPRESENTATION OR GUARANTY THAT SUCH REFERRALS WILL ACTUALLY RESULT IN AN AGREEMENT FOR THE NETDOCUMENTS SERVICE AND SHALL NOT BE LIABLE FOR ANY PROSPECTIVE COPORATE CUSTOMER THAT IS REFERRED BY RP TO NETDOCUMENTS BUT DOES NOT REGISTER FOR THE NETDOCUMENTS SERVICE.

General

Relationship of the Parties.  The parties hereto acknowledge and agree that, under this Agreement, they are both independent contractors, and that neither shall at any time be considered, or represent itself to be, an agent, employee, associate, or joint venture party.  Except as expressly provided in this Agreement, neither party shall have the authority nor hold itself out to bind the other party to any contract or commitment, nor shall either party be responsible for the acts or omissions of the other.

No Conflicts.  NetDocuments and RP each represent and warrant to the other that neither the execution nor delivery of this Agreement, nor performance of its obligations hereunder, will conflict with, or result in a breach of any term, condition, or provision of, or constitute a default under, any law, obligation, contract, covenant, or instrument to which it is a party or under which it is bound.

Notices.  Any and all notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be given in the following manner and be deemed given as follows: (i) if by personal delivery, on the date of receipt by the intended recipient; (ii) if by private courier or by Express Mail or certified or Free mail, postage prepaid and return receipt requested (as applicable), on the date of first attempted delivery (whether successful or not) to the intended recipient’s last known address; or (iii) if by fax or email, on the date of written acknowledgement of receipt from the intended recipient.  All notices hereunder shall be addressed as follows:

If to NetDocuments:

NetDocuments

ParkView Plaza

625 South State Street 

Orem, Utah 84058

Attention:  Kenneth W. Duncan, CEO

E-mail:  HYPERLINK "mailto:ken@netdocuments.com" ken@netdocuments.com

Fax: 801.226.6933.

Each party shall be responsible for providing the other party with timely written notice of any change in its address to which notices hereunder shall be sent.

Assignment.  Neither party to this Agreement may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign or otherwise transfer any or all of its rights or obligations under this Agreement to a parent, subsidiary company or to a successor-in-interest, without the prior consent of and upon written notice given to the other party.

Successors.  All of the provisions hereof shall be binding upon and inure to the benefit of the heirs, agents, trustees, administrators, receivers, successors, executors or assigns and any other transferees of the parties hereto.

Waiver/Amendment.  Neither this Agreement nor any of its provisions may be waived, amended or otherwise modified, except by a written instrument signed by both parties and then only to the extent expressly provided therein.

Headings.  The headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

Ambiguities.  Each party and its legal counsel have reviewed this Agreement. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in interpreting this Agreement.

Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument.

Applicable Law.  This Agreement shall be understood and interpreted according to the laws of the State of Utah.  

Mediation/Venue.  In the event of any claim or dispute between the parties hereto and arising out of, or in connection with, this Agreement or the relationship created between said parties as a result of this Agreement shall first be submitted to non-binding mediation before resorting to litigation or to any other method of dispute resolution.  Mediation, suit or any other method of dispute resolution shall be initiated and conducted exclusively in Salt Lake City, Utah.

Severability.  In the event that any of the provisions or portions thereof, of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions or portions of this Agreement shall not be affected thereby.

Survival.  The provisions of Sections 4, 5, 6, 8.1, 8.2, 8.5, as well as any accrued payment obligations under Section 8, shall survive the termination of this Agreement.

Entire Agreement.  This Agreement constitutes the entire understanding and agreement of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings, whether written or oral.  Both parties acknowledge and agree that neither of them has entered into this Agreement on the basis of any representations or promises not expressly contained herein.

Updated March 20, 2009