JOINT MARKETING AND SALES REFERRAL AGREEMENT

Transcription

1 This Referral Agreement (the Agreement) is made effective as of 2012 (the Effective Date) by and between Aerospike, Inc., a Delaware corporation, with an address at 2525 E. Charleston Road, Suite 201, Mountain View, CA, 94043, USA (Company) and, a corporation with an address at (Representative). The parties agree as follows: 1. DEFINITIONS. Customer means a third party that is (i) referred to Company by Representative via a valid Lead Form accepted by Company (Lead Form) attached as Exhibit A and (ii) which executes a Product Agreement with Company while the Lead Form is still valid. Product means the Aerospike database product as specified and distributed by Company, from time to time. Product Agreement means the written contract by which Company agrees to grant Customer a license to use the Product and to provide support, maintenance or other services to Customer that are related to the Product. 2. MARKETING. 2.1 Joint Marketing. Aerospike and Representative will jointly develop marketing materials, including, but not limited to, customer presentation, product demo and press releases. All such marketing materials shall be approved by both parties before they are used in any manner. 2.2 Limited Trade Mark and Logo License. Each party hereby grants the other party a royalty-free, worldwide, nonexclusive, non-transferable limited license to reproduce the other party s trademark and logo solely on the other party's website for marketing purposes, subject to any trademark usage guidelines that may be provided by such party in writing from time to time. Except for the license rights expressly granted herein, each party reserves all right, title and interest to its trademark and logo. 3. REFERRALS. 3.1 Obligations. Representative agrees to use diligent efforts to refer potential customers to Company, on a nonexclusive basis, solely within the Territory (as defined in Exhibit B). Representative will (a) present and promote the Product to its existing and potential customers, (b) facilitate face-to-face meetings between Company and potential customers, (c) upon request, arrange and attend Product demonstrations or introductory meetings between Company and potential customers, and (d) continue facilitating the sales process between Company and potential customers, even after prospect identification, face-to-face meetings and Product demonstrations, until execution of the Product Agreement. 3.2 Lead Form. Representative shall identify each bona fide prospective customer to Company using a separate Lead Form as specified in Exhibit A. All Lead Forms shall be subject to acceptance by Company, in its sole discretion. The Lead Form shall not be effective if (a) the prospect is already under contract to receive any product or service from Company, (b) the prospect is identified to Company by any of its resellers, distributors, partners or other representatives prior to receipt of the Lead Form from Representative, (c) as evidenced by its records, Company has entered into discussions with the prospect prior to receipt of the Lead Form from Representative or (d) the prospect is solicited or procured by Representative other than in compliance with this Agreement. Lead Forms will automatically expire and be of no further effect 6 months after their date if no Product Agreement has been fully executed with the prospect identified therein. 3.3 Company Materials. Company may provide Representative with certain materials (such as, for example, marketing collateral or demonstration versions of the Product) solely for use in unmodified form in promoting the Product hereunder (Company Materials). 4. PAYMENTS. 4.1 Fees and Expenses. As the only consideration due Representative regarding the subject matter of this Agreement, Company will pay commission or otherwise compensate Representative in respect of successful Customer referrals in the amounts and at the times specified in Exhibit B. Except as expressly provided otherwise, each party will be responsible for all costs and expenses incurred in connection with its performance. 4.2 Taxes. Each party shall be responsible for and pay any and all applicable federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, sales taxes, use taxes and value added taxes) resulting from its own activities under this Agreement. 5. PROPRIETARY RIGHTS. 5.1 No Implied License. Except for the limited rights and licenses expressly granted hereunder, no other license is granted, no other use is permitted and as between the parties, Company (and its licensors) shall retain all right, title and interest in and to the Product and Company Materials (including all intellectual property and proprietary rights embodied therein). Representative agrees not to take any action inconsistent with such title 1

2 and ownership. 5.2 Confidentiality. Confidential Information means all trade secrets, know-how, software, pricing, customer and other financial, business or technical information disclosed by or for a party in relation to this Agreement that is designated as confidential or which a reasonable person would understand its confidential or proprietary nature. Confidential Information does not include any information the receiving party can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any separate nondisclosure obligation to the disclosing party, (b) generally available to the public without breach of this Agreement or (c) contained in a Lead Form. Except for the specific rights granted by this Agreement, neither party shall use or disclose any of the other's Confidential Information without its prior written consent. A party receiving Confidential Information shall use reasonable care to protect it. Each party shall be responsible for any breach of confidentiality by its employees and contractors. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to permit the disclosing party to intervene and request protective orders or other confidential treatment therefor. 5.3 Irreparable Harm. Any breach or threatened breach of this Section 5 will cause irreparable harm to the nonbreaching party for which money damages will not be an adequate remedy. Therefore, the non-breaching party shall, in addition to any other legal or equitable remedies, be entitled to an injunction or similar equitable relief against any such breach or threatened breach without the necessity of posting any bond. 6. WARRANTIES AND DISCLAIMERS. 6.1 Warranties. All warranties concerning the Product, Company Materials and otherwise shall run directly from Company to the Customer as set forth in the Product Agreement or other writing. In no event shall Representative make any representation, warranty or offer concerning the Product, Company Materials or terms or conditions of the Product Agreement, except as expressly authorized in advance in writing by Company. Representative shall defend, indemnify and hold harmless Company, its directors, officers, employees, agents and affiliates against any and all claims, liabilities, losses, damages, costs and expenses arising out of or related to Representative's unauthorized representations, warranties or offers concerning the Product, Company Materials or terms or conditions of the Product Agreement. 6.2 Disclaimers. NO REPRESENTATION OR WARRANTY CONCERNING THE PRODUCT, COMPANY MATERIALS OR OTHERWISE IS MADE BY COMPANY TO REPRESENTATIVE HEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES IN RESPECT THEREOF, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. 7. LIMITATION OF LIABILITY. EXCEPT FOR (A) EITHER PARTY'S BREACH OF SECTION 5 OR (B) REPRESENTATIVE'S OBLIGATIONS UNDER SECTION 6.1, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (I) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES OR PROFITS, OR (II) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID BY COMPANY TO REPRESENTATIVE HEREUNDER DURING THE 12- MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. 8. TERM AND TERMINATION. 8.1 Term. This Agreement shall commence on the Effective Date and continue in effect for an initial term of 1 year (the Initial Term ). Following the Initial Term, this Agreement shall automatically renew for successive renewal terms of 1 year (each, a Renewal Term, and together with the Initial Term, the Term ), unless either party gives the other party notice of non-renewal at least thirty (30) days prior to the end of the Initial Term or then-current Renewal Term (as applicable). 8.2 Termination. Either party may, at its option, terminate this Agreement upon thirty (30) days written notice to the other party for any reason or no reason. Termination of this Agreement shall not be an exclusive remedy for breach and, whether or not termination is effected, all other remedies will remain available. 8.3 Effects of Termination. Upon any termination of this Agreement, all rights, obligations and licenses of the parties hereunder shall cease except that (a) any compensation due to Representative that accrued prior to the termination date 2

3 shall be due and payable within 30 days, (b) unless Company terminates this Agreement for Representative's material breach (in which case this Section 8.3(b) shall not apply), its responsibility for any compensation that accrues after the termination date in accordance the terms of this Agreement shall survive and will be due and payable to Representative as specified in Exhibit B, (c) Representative shall immediately stop using the Company Materials and promoting the Product, (d) each party shall promptly return to the other or, if so directed by the other party, destroy all originals and copies of any Confidential Information and all information, records and materials developed therefrom (including any Company Materials) and (e) the provisions of Sections 5 (Proprietary Rights), 6 (Warranties and Disclaimers), 7 (Limitation of Liability), 9 (General Provisions) and this Section 8 (Term and Termination), and any remedies for breach of this Agreement, shall survive any termination. 9. GENERAL PROVISIONS. 9.1 Independent Contractors. The parties shall be independent contractors in their performance under this Agreement, and nothing contained in this Agreement shall be deemed to constitute either party as the employer, employee, agent or representative of the other party, or both parties as joint venturers or partners for any purpose. 9.2 Entire Agreement; Amendment. This Agreement (including the exhibits attached hereto) constitutes the entire agreement between the parties with regard to the subject matter hereof. This Agreement supersedes all prior negotiations, understandings or agreements (oral or written) between the parties relating to this subject matter and all past dealing or industry custom. No waiver, consent, modification or change of terms of this Agreement shall bind either party unless in writing signed by the party against which enforcement is sought, and then only in the specific instance and for the specific purpose given. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument. Execution of a facsimile copy shall have the same force and effect as execution of an original, and a facsimile signature shall be deemed an original and valid signature. 9.3 Waivers. The waiver by either party of any breach or default by the other party of any provision of this Agreement shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party. 9.4 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Exclusive jurisdiction and venue for any litigation arising under this Agreement is in the federal and state courts located in California having jurisdiction over Company's offices, and both parties hereby consent to such jurisdiction and venue for this purpose. 9.5 Remedies. Except as specifically provided otherwise, each right and remedy in this Agreement is in addition to any other right and remedy, at law or in equity, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. The prevailing party shall be entitled to recover from the other its costs, expenses and reasonable attorneys' fees incurred in connection with any action or proceeding to enforce or interpret this Agreement or in obtaining and enforcing any judgment or order. 9.6 Assignment. This Agreement and the rights and obligations hereunder may not be assigned, in whole or in part, by either party without the other's prior written consent (which shall not be unreasonably withheld). However, without consent, either party may assign this Agreement to any affiliate or to any successor to all or substantially all of its business which concerns this Agreement (whether by sale of assets or equity, merger, consolidation or otherwise). This Agreement shall be binding upon, and inure to the benefit of, the successors, representatives and permitted assigns of the parties hereto. 9.7 Notices. Any notice or communication from one party to the other shall be in writing and either personally delivered or sent via confirmed facsimile, recognized express delivery courier or certified or registered mail, postage prepaid and return receipt requested, addressed to such other party at the address specified in the first paragraph of this Agreement, or at such other address as such party may from time to time designate in a notice to the other party. All notices shall be in English and effective upon receipt. 9.8 Severability. If any provision of this Agreement shall, in whole or in part, be determined to be invalid, unenforceable or void for any reason, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect. 9.9 Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be deemed part of or used to construe the meaning of this Agreement. IN WITNESS WHEREOF, intending to be legally bound, the parties have caused their duly authorized officers to execute 3

4 this Agreement as a sealed instrument, as of the Effective Date. AEROSPIKE, INC. REPRESENTATIVE By: Name: Title: Date: By: Name: Title: Date: 4

5 Exhibit A Aerospike Lead Form Representative Company Name Address Individual Name Title Telephone # Facsimile # Prospective Customer General Information Company Name Address Telephone # Facsimile # Website Prospective Customer Key Contacts Individual Name Individual Name Title Title Telephone # Telephone # Facsimile # Facsimile # Description of Customer Requirements, Environment, Special Requirements, Etc. Today's Date Dates Estimated Close Date 5

6 Exhibit B Territory and Compensation Territory: Travel Expenses: Company requests that Representative travel in connection with this Agreement, then subject to documentation reasonably acceptable to Company, Company will reimburse Representative for its out-of-pocket expenses reasonably incurred for such travel; provided, that individual expenses in excess of $500 must be approved in advance in writing by Company. Commissions: Within 45 days after the end of each calendar quarter, Company will pay Representative a commission equal to 10 % of the License Fees actually received by Company from each Customer during the immediately previous calendar quarter. Amounts received by Company following termination of this Agreement may be subject to Commission payments as set forth in Section 6.2(b), above. License Fees means amounts that Company actually receives from Customer in respect of Product license fees in accordance with the applicable Product Agreement during the first year of such Product Agreement, in each case less any credits or refunds and net of any taxes or other governmental assessments or withholdings. Representative agrees that any training, consulting, implementation, maintenance, support, hardware or thirdparty software fees, and any pass-through expenses paid by Customer, shall not be included in the calculation of License Fees. Company's good faith determination of the amount of License Fees applicable hereunder shall be final and binding. For the avoidance of doubt, once an initial Product Agreement has been executed between Company and a Customer, any additional purchase of products or services from such Customer (i.e., beyond the initial purchase set forth in such Product Agreement) shall not be subject to the payment of Commissions hereunder. Limitations: Representative agrees that Company shall not be obligated to pay commissions or any other compensation described in this Exhibit B (i) except in respect of Customers identified in a Lead Form that is still in effect (pursuant to Section 3.2 of the Agreement) on the effective date of the applicable Product Agreement or (ii) if the Product Agreement between Customer and Company expires or is terminated for any reason during the applicable calendar quarter. 6