partner program agreement

PLEASE READ THIS PARTNER PROGRAM AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE PRESSING OR CLICKING THE “I ACCEPT” BUTTON.

BY CLICKING ON THE “I ACCEPT” BUTTON, AND/OR DOWNLOADING, INSTALLING, RESELLING, PROMOTING OR OTHERWISE USING THE PRODUCTS (AS DEFINED BELOW), YOU ARE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND AGREE TO BE BOUND BY THE SAME.

THIS IS A BINDING LEGAL AGREEMENT BETWEEN EKOS SOFTWARE, INC. (“EKOS”) AND THE INDIVIDUAL AND/OR ENTITY ENTERING INTO THIS AGREEMENT WITH EKOS (“PARTNER”). IF YOU, AN INDIVIDUAL, ARE EMPLOYED WITH AN ENTITY AND ARE EXECUTING THIS AGREEMENT ON BEHALF OF THAT ENTITY, YOU REPRESENT AND WARRANT TO EKOS THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THE ENTITY, AND THE TERM “PARTNER” SHALL REFER TO THE ENTITY.

IF YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, PRESS “I DO NOT ACCEPT” AND YOU ARE NOT AUTHORIZED TO DOWNLOAD, INSTALL, RESELL, PROMOTE OR OTHERWISE USE THE PRODUCTS.

1. APPOINTMENT.
   Subject to Partner’s compliance with the terms of this Agreement, Ekos appoints Partner as a nonexclusive independent representative for promoting the sale of the products and services listed in Exhibit A (“Products”) to potential customers (the “Customers”). Partner’s relationship with Ekos under this Agreement will be that of an independent contractor. Partner will not have, and will not represent that it has, any authority to bind Ekos, or to assume or create any obligations or to make any warranties or representations on behalf of Ekos.

2. OBLIGATIONS OF PARTNER.
   2.1 Promotion. Partner will use best efforts to promote the Products to Customers and to encourage Customers to place orders for the Products with Ekos or its affiliates or distributors. Partner will maintain adequate technical knowledge and training necessary to inform Customers properly concerning the features and capabilities of the Products. Partner agrees to recommend the Products as its primary, preferred ERP system to any craft food and beverage clients or other Customers and shall not direct current customers of Ekos to other companies providing similar or competitive Products as Ekos.
   
   2.2 Covenants. Partner will not: (i) make any false or misleading representations with regard to Ekos or its affiliates or distributors, or the Products; (ii) make any representations, warranties or guarantees to Customers or to the trade with respect to the specifications, features or capabilities of the Products that are inconsistent with the information provided by Ekos or its affiliates or distributors; or (iii) use any trademarks, service marks, trade names, corporate names, Internet domain names, trade dress, logos, slogans or other source indicators of Ekos or its affiliates or distributors without Ekos’ prior written approval.
   
   2.3 Lead Qualification. Partner shall notify Ekos of qualified prospective Customers (each, a “Prospect”) by: (i) completing the lead form in the Referrals section of PartnerStack or (ii) directing Customers to use Partner’s unique referral link, accessible in PartnerStack, to complete the lead form on the Ekos website (each, a “Prospect Referral”). Upon receipt of each Prospect Referral, Ekos shall determine whether the Prospect meets the following criteria: (i) the Prospect is not a current customer of Ekos; (ii) Ekos has not had active discussions about the prospect of purchasing any Product within the previous twelve months; (iii) no other sales agent, sales representative, value added reseller, original equipment manufacturer or other distributor or sales agent of Ekos (collectively, “Dealer”) has an active registration of such Prospect with Ekos; and (iv) Ekos is not aware of any current discussions for the purchase of any Product by such Dealer. Ekos shall endeavor to respond to the receipt of each Prospect Referral within ten (10) business days. Prospects approved by Ekos according to this process shall be deemed “Qualified Prospects.” In the event that Ekos does not respond to a Prospect Referral within ten (10) business days of receipt thereof, then such Prospect shall be deemed not to be a Qualified Prospect. Ekos shall endeavor to notify Partner as to the reasons for any denial of Qualified Prospect status, subject to Ekos’ applicable confidentiality obligations. In order to qualify for payment of the commission fees specified in Section 3.1, Partner must facilitate a meeting (in person, online, or by telephone) between Ekos and the Qualified Prospect, and such Qualified Prospect and Ekos must execute a valid and binding agreement or other binding document for one or more Product(s) (a “Qualifying Commitment”), upon terms and conditions acceptable to Ekos in Ekos’ sole discretion, within 90 days following the submission by Partner of a valid Prospect Referral listing such Qualified Prospect. If the Qualified Prospect does not enter into a Qualifying Commitment within such ninety (90) day period, then such person or entity shall lose Qualified Prospect status, and Partner shall not seek to add such person or entity as a Qualified Prospect for six (6) months after the Qualified Prospect designation expires, unless extended in writing by Ekos.

3. PARTNER INCENTIVES
   3.1 Referrals. In exchange for referring Qualifying Commitments to Ekos, Partner shall be eligible for Incentives as set forth in Exhibit B (“Fees”). Unless this Agreement is terminated for Partner’s default, the obligation to pay Fees or honor other incentives shall survive the termination or expiration of this Agreement with regard to (i) any Qualifying Commitment and (ii) any Qualified Prospect for which Partner has facilitated a meeting (in person or online) between Ekos and the Qualified Prospect and which subsequently, within 90 days following the submission by Partner of a valid Prospect Referral listing such Qualified Prospect, enters into a Qualifying Commitment.
   
   3.2 Payment Terms. Ekos will render payment to Partner of all Fees owed to Partner (if any) via PartnerStack, which payment shall be governed by such terms and conditions as set forth from time to time by PartnerStack. Except as specifically set forth in Section 3.1, no fees or other sums shall be payable to Partner in connection with any Prospect, Qualified Prospect, or Qualifying Commitment.
   
   3.3 Records. Each party will maintain relevant records with respect to any Fees payable in accordance with this Agreement. Each party shall maintain business and financial records that contain information sufficient to verify the completeness and accuracy of all Fees for a period of at least one (1) calendar year after each calendar quarter to which such Fee or report relates.

4. CONFIDENTIAL INFORMATION.
   Partner acknowledges that, in the course of performing its obligations under this Agreement, Ekos may provide to Partner certain information relating to Ekos and its products, services, programs, partnerships, trainings, resources and other such related information, as well as information relating to third parties, all of which is of value to its owner and is treated as confidential (“Confidential Information”). Partner will use Confidential Information only in connection with fulfilling its obligations under this Agreement, and will not use or disclose Confidential Information except as permitted herein. The obligations contained in this Section will not apply to the extent any information: (i) is or becomes public knowledge without the fault or action of Partner; (ii) is rightfully known by Partner at the time of disclosure without an obligation of confidentiality; or (iii) Partner rightfully obtains from a third party without restriction on use or disclosure. The obligations contained in this Section will not apply to any Confidential Information that is required to be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body, provided that Partner gives reasonable notice to Ekos so that Ekos may contest such an order or requirement or that is required to be disclosed under applicable securities regulations. Additionally, due to Partner’s access to the Confidential Information resulting from this Agreement, and in order to avoid any conflict of interest or unlawful use of the Confidential Information, during the term of the Agreement, Partner agrees not to develop, create, or assist any other person or entity in the development or creation of any products that perform substantially the same business functions as the Products.

5. TERM AND TERMINATION.
   5.1 Term. This Agreement commences as of the date this Agreement is entered into and shall continue until the one year anniversary thereof. This Agreement shall automatically renew for consecutive one (1) year periods unless either party provides the other with at least thirty (30) days prior written notice of such party’s intent not to renew.
   
   5.2 Termination. This Agreement may be terminated at any time by either party in the event of any breach by the other party that continues unremedied for a period of ten (10) days following written notice thereof. Ekos may terminate this Agreement for any reason upon thirty (30) days prior written notice to Partner. Additionally, if either party: (i) files a petition for bankruptcy; (ii) shall be adjudicated bankrupt by any court; (iii) shall make an assignment for the benefit of creditors; (iv) shall take the benefit of any bankruptcy or insolvency act; or (v) shall generally become unable to pay its debts when due, this Agreement may be terminated by the other party upon notice, and such termination shall be effective as of the date of the filing of such petition, adjudication, appointment, assignment or declaration or commencement of reorganization or liquidation proceedings.
   
   5.3 Effect of Termination. Upon the termination or expiration of this Agreement, Partner will immediately return to Ekos all copies of all Confidential Information in its possession or control. Except in the event of a termination for Partner’s breach (in which case all payment obligations shall cease), Ekos’ payment obligations following termination or expiration of this Agreement shall continue in accordance with Sections 3.1 and 3.2.
   
   5.4 Survival. Sections 4, 5.3, 5.4, 6, 7, and 8 of this Agreement (and any corresponding rights or obligations of either party or both parties thereunder) will survive any termination or expiration of this Agreement.

6. INDEMNIFICATION.
   Partner agrees to indemnify, defend and hold harmless Ekos from and against all damages, costs, losses, and liabilities arising out of third party claims and related to the breach of the representations, warranties and covenants contained in this Agreement or any other act or omission of Partner.

7. LIMITATION OF LIABILITY; DISCLAIMER.
   7.1 Disclaimer. ANY PRODUCTS, DOCUMENTATION, BUSINESS MODELS OR OTHER MATERIALS ARE PROVIDED BY EKOS “AS IS” AND WITHOUT ANY WARRANTY, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, AS TO PERFORMANCE, ACCURACY, OR FREEDOM FROM ERROR. EKOS MAKES NO EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO PARTNER WITH RESPECT TO THE PRODUCTS, ANY SERVICES PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY AGAINST INFRINGEMENT, AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED.
   
   7.2 Limitation of Liability. EKOS SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES INCURRED BY PARTNER, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR GOODWILL OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ANY LIABILITY OF EKOS ARISING HEREUNDER EXCEED THE AMOUNTS PAID BY EKOS TO PARTNER DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

8. GENERAL.
   In all matters relating to this Agreement, neither Partner nor its employees or agents are or will act as employees of Ekos within the meaning or application of any federal or state unemployment insurance laws, old age benefit laws, social security laws, workers’ compensation or industrial accident laws, or under any other laws or regulations that may impute any obligations or liability to Ekos by reason of an employment relationship. Partner may not assign or transfer this Agreement, in whole or in part, whether by change of control, operation of law, or otherwise, without Ekos’ prior written consent. Any attempted assignment or transfer, without such consent, will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the parties’ successors and permitted assigns. Except as expressly provided herein, nothing in this Agreement transfers, licenses or assigns any intellectual property rights. The waiver by either party of any default by the other party will not waive subsequent defaults by the other party of the same or a different kind. In the event any provision of this Agreement is held to be unenforceable, the other provisions of this Agreement will remain in full force and effect. This Agreement, including its Exhibits (which are incorporated herein by this reference), constitutes the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersedes any and all written or oral agreements previously existing between the parties with respect to such subject matter. Any modifications of this Agreement must be in writing and signed by both parties hereto. Any notices required or permitted under this Agreement will be in writing and will be effective upon delivery to the receiving party’s address as specified by the party from time to time. This Agreement may be executed in counterparts (including by facsimile), each of which will be considered an original. This Agreement and all matters relating to this Agreement will be governed by the laws of the State of Georgia, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in Charlotte, North Carolina. Ekos and Partner hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding

EXHIBIT A
Products & Services

The PRODUCTS listed immediately below, and only these products, may be covered by this Agreement, pending Partner’s selection of Incentives. Prices listed below are monthly subscription rates. Customers may purchase Products on an annual basis. At Ekos’ sole discretion, Prices and Products described herein are subject to change and are subject to discounting during the sale process.

The ONBOARDING SERVICES listed immediately below, and only these services, may be eligible for discounting in this Agreement. Prices listed below are one-time payments. At Ekos’ sole discretion, Prices and Onboarding Services described herein are subject to change and are subject to discounting during the sale process.

EXHIBIT B
Referral Incentives

Referral Fees:

• Subject to Partner maintaining compliance with this Agreement, Partner may elect to either: (i) earn a one-time commission equal to ten percent (10%) of the first-year annual contract value of each Qualifying Commitment subscription payment(s) for the Products listed in Exhibit A or (ii) ensure that the Qualifying Commitment receives a discount equal to twenty-five percent (25%) on the Onboarding Services listed in Exhibit A (each, an “Incentive”). Partner’s initial selection of an Incentive shall be deemed to be Partner’s permanent associated Incentive for the duration of Partner’s engagement with Ekos, unless otherwise agreed to in writing by Ekos. Commissions shall be deemed earned upon receipt of the underlying payment by Ekos and shall be paid in accordance with Section 3.2. Notwithstanding anything to the contrary herein, Ekos will have no obligation to pay Partner any referral fees on Products that are refunded, returned or cancelled by a Customer, and any such Fees previously paid by Ekos to Partner shall be set forth as offsets to future Fees payable hereunder.

For avoidance of doubt, the first-year annual contract value on which a commission is earned shall be the actual annual value agreed to and paid by the customer after discounting; such amount may be less than the list prices in Exhibit A. For an annual subscription, paid up front by the Customer, Partner will earn commission on the full annual amount when it is received by Ekos. For annual subscriptions with more than one payment due, e.g., bi-annual billing, Partner will earn commission as each such payment is received by Ekos. For monthly subscriptions, Partner will earn commission as each monthly payment is received by Ekos during the first twelve months of subscription.