Referral Agreement

ScaleUpOnDemand LLC, located at 1453 Barbara Street, Mt. Pleasant, SC 29464 is referred to as “ScaleUpOnDemand”, “we”, “us” or “our” and the Referrer (i.e. the person submitting the referral form) is referred to as “Company”, “You” or “Your” in this Referral Agreement. ScaleUpOnDemand and Company are each a “Party” and together the“Parties”.  The Parties agree as follows:

  1. REFERRALS

    1. Referrals. Company intends to refer to ScaleUpOnDemand potential customers (each a “Lead”) interested in purchasing ScaleUpOnDemand’s services (the “Services”) described in Exhibit A. You will refer each Lead to us using the online Lead Registration Form (scaleupondemand.com/referrals-form). No Referral Fee (defined in Section 2) will be paid to You absent a Lead Registration Form that is accepted by us in accordance with Section 1.2.

    2. Lead Qualification. We may reject any Lead Registration Form that references a Lead that: (a) is an existing customer of ScaleUpOnDemand; (b) has already been identified by ScaleUpOnDemand as a potential customer; (c) has, prior to the date of Your submission of the Lead Registration Form, been referred to and accepted by ScaleUpOnDemand as a Lead by a third party; or (d) references a Lead that ScaleUpOnDemand, in its sole discretion, does not wish to engage.  If we do not reject a Lead Registration Form within 30 days of Your submission thereof, the Lead will be deemed as accepted (each a “Qualified Lead”) as of the date You submit the Lead Registration Form.  If ScaleUpOnDemand and any Qualified Lead do not execute an agreement for that Qualified Lead’s purchase of the Services within 6 months after the Lead is accepted as a Qualified Lead, that Lead will no longer be a Qualified Lead unless Company re-submits a Lead Registration Form that is accepted by ScaleUpOnDemand.

  2. FEES; PAYMENT

    1. Referral Fees.  For each Qualified Lead that You refer to us, You will receive a fee described in Exhibit A (each a “Referral Fee”) if we enter into an agreement with that Qualified Lead for purchase of the Services within 6 months after the Lead is accepted as a Qualified Lead (a “Referred Customer”).  ScaleUpOnDemand will have no obligation to and retains the right to determine in its sole discretion whether to enter into an agreement for the Services with a Qualified Lead.

    2. Payment. ScaleUpOnDemand will pay You a Referral Fee within 30 days after we receive payment from a Referred Customer for the Services upon which the Referral Fee is based. All Referral Fees are exclusive of taxes.  You will be solely responsible for payment of any and all national, state, and local taxes and charges arising from or imposed on payments made by ScaleUpOnDemand.

  3. COMPANY’S OBLIGATIONS

    1. During the Term, Company will use commercially reasonable efforts to:

      1. Use appropriately trained technical resources and expertise to fulfill its obligations under this Agreement; and

      2. Promote the Services, including via in person using webinars, seminars, and meetings with Leads and potential Leads.

    2. ScaleUpOnDemand grants to You during the Term a limited, nonexclusive, nontransferable, royalty-free, fully paid-up license to use, reproduce, distribute, prepare derivative works, and publicly display ScaleUpOnDemand’s Marketing Collateral solely for the purposes of marketing, promoting, or demonstrating the Services to Leads or potential Leads or otherwise fulfilling Your obligations under this Agreement.  “Marketing Collateral” means any content or graphic materials in written, audio, or electronic format that ScaleUpOnDemand provides or otherwise grants You access to for the purposes of supporting ScaleUpOnDemand’s sales and marketing activities. Company will use the Marketing Collateral and technical documentation appropriately and in accordance with guidelines reasonably specified by ScaleUpOnDemand from time to time.

    3. Company will not make any representation about ScaleUpOnDemand or the Services that is false, misleading, or otherwise harmful or inconsistent with ScaleUpOnDemand’s documentation, public image, or sales strategies and positioning.

    4. Neither Party will use the other Party’s trademarks, service marks, or logos (“Trademarks”) without that Party’s prior written consent except to the extent ScaleUpOnDemand’s Trademarks are included in the Marketing Collateral licensed to Company under Section [4.2].  Neither Party will use the other Party’s Trademarks in any way which may harm the reputation of the other Party, its products and services, or the goodwill associated with its Trademarks.  Whenever using the other Party’s Trademarks, a Party will comply with any other requirements relating to the Trademarks reasonably requested by other Party from time to time.

    5. Company will designate a primary contact person to coordinate its marketing and promotional obligations under this Agreement and its communications with ScaleUpOnDemand regarding Leads.

    6. If Company becomes aware of any claim or lawsuit relating to the Services by a Referred Customer, or a breach of ScaleUpOnDemand’s policies by a Referred Customer, it will promptly notify ScaleUpOnDemand in writing.

  4. CONFIDENTIALITY

During the Term and for a period of 5 years after its termination or expiration, each Party (the “Receiving Party”) which receives Confidential Information (as defined below) of the other Party (the "Disclosing Party") shall not use, other than in connection with its obligations under this Agreement, or disclose to anyone, other than officers, employees or representatives of the Receiving Party with a need to know for purposes of this Agreement and who are subject to confidentiality obligations consistent with the terms of this Agreement (“Representatives”), any Confidential Information disclosed to the Receiving Party by or on behalf of the Disclosing Party.  The Receiving Party shall safeguard disclosure of such Confidential Information to the same extent as with the Receiving Party’s own Confidential Information, but shall at least use reasonable care.  Upon termination of expiration of this Agreement, or earlier upon request of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party or destroy the Disclosing Party’s Confidential Information in its possession or under its control.  For purposes of this Agreement, the term “Confidential Information” means all information, material and data of the Disclosing Party which (i) is labeled or designated in writing as confidential or proprietary, (ii) the Receiving Party is advised is proprietary or confidential, or (iii) in view of the nature of such information and/or the circumstances of its disclosure, the Receiving Party knows or reasonably should know is confidential or proprietary.  These confidentiality obligations shall not apply to any such information which (i) is or becomes publicly known without any fault of or participation by the Receiving Party or its Representatives, (ii) was in Receiving Party's possession prior to the time it was received from Disclosing Party or came into Receiving Party's possession thereafter, in each case lawfully obtained from a source other than Disclosing Party or its Representatives and not subject to any obligation of confidentiality or restriction on use, or (iii) is required to be disclosed by judicial, arbitral or governmental order or process or operation of law, in which event the Receiving Party shall, unless prohibited by law, notify the Disclosing Party of the requirement of disclosure before making such disclosure and shall comply with any protective order or other limitation on disclosure obtained by the Disclosing Party; or (d) is independently developed by the Receiving Party without reference to the Disclosing Party's Confidential Information. Any use or disclosure of the Disclosing Party's Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the Disclosing Party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the Disclosing Party may request injunctive or other equitable relief seeking to restrain such use or disclosure.  

  1. WARRANTIES

Each Party warrants that (a) it will comply at all times with all applicable laws and regulations; and (b) it will engage in all undertakings in a professional and workmanlike manner, consistent with recognized industry standards and good commercial practices.

  1. INDEMNIFICATION

Each Party will indemnify, defend and hold harmless the other Party and its representatives from and against any and all third party claims, costs, expenses, losses and liabilities claimed by third parties, arising out of the products or services referenced in this Agreement, except to the extent such claims, costs, expenses, losses, and liabilities are caused by or contributed to by the other Party.

  1. TERM; TERMINATION

    1. This Agreement will commence on the Effective Date and shall continue for 1 year (“Initial Term”), whereafter it will automatically renew for successive 1 year periods (each, a “Renewal Term” and together with the Initial Term, the “Term.”)

    2. Either Party may terminate this Agreement for any or no reason upon 30 days’ written notice to the other Party.

    3. Either Party may terminate this Agreement for cause effective immediately if the other Party is in material breach of its obligations and that breach remains uncured 30 days after written notice thereof.

    4. Any right or obligation of a Party which by its nature must survive termination or expiration of this Agreement in order to achieve its fundamental purposes shall survive any termination of this Agreement.

  2. GENERAL

    1. Assignment. Neither Party may assign this Agreement, or any of its rights or obligations under the Agreement, without prior written consent of the other Party, but each Party may assign its rights and obligations to any of its affiliates or subsidiaries, or to any successor in interest of any business or assets effective upon written notice to the other Party.

    2. Governing Law; Venue. This Agreement is governed by the laws of the State of South Carolina, without regard to its conflicts of law rules.  Any legal proceeding arising out of or relating to this Agreement will be brought in the state and federal courts of Charleston County, South Carolina.  Each Party consents to the exclusive jurisdiction and venue of such courts.

    3. Exclusion of Certain Damages.  EXCEPT WITH RESPECT TO A PARTY’S OBLIGATIONS UNDER SECTION 4 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOST PROFITS, LOST SALES OR ANTICIPATED ORDERS, OR DAMAGES FOR LOSS OF GOODWILL, EVEN IF A PARTY WAS INFORMED OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS.

    4. Liability Limitation.  EXCEPT WITH RESPECT TO A PARTY’S OBLIGATIONS UNDER SECTION  4 (CONFIDENTIALITY), AND SECTION 6 (INDEMNIFICATION), EACH PARTY’S RESPECTIVE LIABILITY ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE DAMAGES THEORY, SHALL NOT EXCEED THE REFERRAL FEES PAID TO COMPANY DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.

    5. Independent Contractors. The Parties are independent contractors and not partners, employees or agents of the other Party.  The Parties and their representatives will have no authority and will not represent that they have any authority to bind the other Party

    6. Notices. All notices given to the Parties under the Agreement will be in writing and will be given by nationally recognized overnight courier service, certified mail (return receipt requested), facsimile with electronic confirmation or personal delivery at the addresses indicated below.

    7. Export. The Services are subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500).  You will not import, export, re-export, transfer or otherwise use the Services in violation of these laws and regulations, including by engaging in any unauthorized dealing involving (i) a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan and Syria), (ii) a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, or the Commerce Department’s Denied Persons List or Entity List, or (iii) the design, development, manufacture, or production of nuclear, missile, or chemical or biological weapons. By using the Services, You represent and warrant that You are not located in any such country or on any such list.  You will not engage in activity that would cause ScaleUpOnDemand to be violation of these laws and regulations, and You will indemnify ScaleUpOnDemand for any fines, penalties or other liabilities incurred by ScaleUpOnDemand for Your failure to comply with this provision.

    8. Severability; No Waiver; Cumulative Rights. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions will in no way be affected or impaired. A Party does not waive any right under this Agreement by failing to insist on compliance with any term or by failing to exercise any right under this Agreement. Waiver of any provision of this Agreement is effective only if it is written and signed by the Party granting the waiver and will not imply a subsequent waiver of that or any other provision of this Agreement. The rights and remedies of the Parties under this Agreement are cumulative, and either Party may enforce any of its rights or remedies under this Agreement or other rights and remedies available to it at law or in equity.

    9. Entire Agreement; Construction.This Agreement (including Exhibits A and B) contains the entire understanding and agreement of the Parties, and supersedes the Parties’ prior agreements, understandings and discussions relating to its subject matter. The section headings of this Agreement are for convenience only and have no interpretive value. Any list of examples following "including" or "e.g.," is illustrative and not exhaustive, unless qualified by terms like "only" or "solely." Unless the context of this Agreement clearly requires otherwise, references to the plural include the singular. This Agreement may be executed by facsimile and in counterparts, which together will constitute one and the same agreement.

 

EXHIBIT A - REFERRAL PROGRAM

1. Services

“Services” means the services provided by ScaleUpOnDemand, including the ScaleUpOnDemand retainer and project based services (e.g. BDRs, Analysts, Sales Leaders, Executives, Creatives) as described on our website (scaleupondemand.com).

2. Referral Fee

Referral fee will be [5}% of the gross fees received from the Referred Customer for services provided in the Referred Customer's first six months after entering into its first agreement with ScaleUpOnDemand.