THIS AGREEMENT made on the date of Agreement Submission (“Effective Date”), by Upp and Partner (defined below):
Upp Technology, Inc., an Illinois Corporation
One Tower Lane, Suite 1910
Oakbrook Terrace, IL 60181
As identified in "Company" and/or "First Name" and "Last Name" form fields in the Upp Technology Referral Program Application
WHEREAS, Partner desires to refer potential business to Upp in exchange for a Referral Fee upon the close of a sale by Upp, subject to the terms and conditions contained herein;
NOW, THEREFORE, Upp and Partner agree as follows:
1.1 Referral Form. "Referral Form" shall mean the form titled “Referral Partner Lead Submission Form” at the following location http://www.irms360.com/webform/referral_partner_lead_submission_form
1.2 Party. "Party" means Upp or Partner in the singular.
1.3 Parties. "Parties" means Upp and Partner collectively.
1.4 Product. "Product" means a good or service offered by Upp.
1.5 Prospect. "Prospect" means any person or entity that is not a current customer of Upp, or potential customer of Upp not currently engaged by Upp or its referral and reseller partners, interested in purchasing a Product (or Products) offered by Upp.
1.6 Qualified Lead. "Qualified Lead" is an approved sales lead eligible for a Referral fee upon receipt of payment to Upp for an applicable sale.
1.7 Referral Fee. "Referral Fee" shall mean compensation paid by Upp to Partner upon Upp closing a sale based on a Qualified Lead and acceptance of payment by Upp from Prospect.
2. REFERRAL OF PROSPECTS.
2.1 Registering a Sales Lead. To be eligible for a Referral Fee, Partner must identify the Prospect directly to Upp by providing a completed Referral Form. Existing customers of Upp and potential customers currently engaged by Upp or another referral/reseller partner of Upp are not eligible as Prospects.
2.2 Acceptance of Qualified Lead. Partner must successfully register each Prospect to be eligible for a Referral Fee. If a sales lead is approved by Upp, written notice (e-mail is acceptable notice) will be sent to Partner. An approved sales lead shall then be considered a Qualified Lead and is eligible for a Referral Fee upon receipt of payment by Upp for the applicable sale. Upp may accept or reject any sales lead for any reason, in its sole discretion. If a sales lead is not approved within five (5) business days after submission to Upp, the sales lead shall be deemed rejected by Upp.
2.3 Expiration of Qualified Lead. Each Qualified Lead shall only be effective for a period of three hundred sixty-five (365) days from the date of registration. If the sale does not close within such three hundred sixty-five (365) day period, the Qualified Lead will need to be re-registered and re-qualified for a Referral Fee to be paid.
2.4 Non-Exclusive Agreement. Each Party acknowledges that this Agreement does not create an exclusive agreement between the Parties. Each Party shall have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties. Notwithstanding the foregoing, Partner agrees that once it establishes a Qualified Lead with Upp, it will not refer a direct competitor of Upp to Prospect to compete with the Qualified Lead.
3. RESERVED RIGHTS.
3.1 This Agreement shall in no way limit Upp’s right to sell directly or indirectly any product or service to any current or prospective customers, including Prospects.
3.2 Upp will not pay more than one (1) Referral Fee on any given Qualified Lead, and Upp reserves the right to apportion a Referral Fee if more than one referring party has contributed to the close of a Qualified Lead.
4. REFERRAL FEES AND PAYMENT TERMS.
4.1 Referral Fees. Partner may receive the Referral Fee on the initial sale of Upp software Products. Referral Fees are subject to partner classification as outlined in the associated Partnership Description. Payment of referral fees is issued following receipt of payment by Upp.
4.2 Exclusions. Unless otherwise agreed in advance and in writing by Upp, the following Upp Products are not eligible for Referral Fees:
a) Professional services (including training, software customizations, and installation);
b) Maintenance and support fees;
c) Hosting fees;
d) Renewals of any Product/User Seats (including software licenses, maintenance, and support);
e) Any other type of renewal or subsequent Product or User Seats sold after the initial sale.
4.3 Payment Terms. Upp shall within thirty (30) days after receipt of payment from Prospect for the Upp Product(s) included in the Qualified Lead remit the applicable Referral Fee to Partner. All amounts payable by Upp to Partner are subject to offset by Upp against any amounts owed by Partner to Upp.
4.4 Taxes. Partner shall be responsible for payment of all taxes to which the Referral Fee is subject. Partner agrees to indemnify and hold Upp harmless against any taxes, including penalties, duties and interest levied by any government on the Referral Fee.
5. TERM AND TERMINATION.
5.1 This Agreement will commence upon the Effective Date for a period of one year and will auto-renew annually thereafter until terminated by either party upon written notice to the other party. Upp’s obligation to pay Partner the Referral Fee for a Qualified Lead registered prior to the termination date shall survive the termination of this Agreement. Partner performance evaluations will be conducted annually in accordance with Section 8.
5.2 Termination. Either party may terminate this agreement at will upon giving the other party 30 days written notice.
6. WARRANTIES AND LIABILITY LIMITS.
6.1 No Warranties. Upp makes no warranties or representations, and expressly disclaims all warranties and representation, express or implied, including any implied warranties of fitness for a particular purpose, merchantability or otherwise with respect to this Agreement.
6.2. Limitation of Liability. Under no circumstances shall either Party be liable for any special, indirect, incidental or consequential damages of any kind or nature whatsoever, arising out of or in any way related to this Agreement regardless of the legal theory upon which such claim for damages is based, even if the Party has been advised of the possibility of such damages if such damages could have been reasonably foreseen. In no event shall either Party’s liability under this Agreement exceed one thousand United States dollars ($1,000).
7.1 NDA. Both Parties will enter into a mutual Non-Disclosure Agreement before partnership will be provided to Partner.
7.2 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to its subject matter and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral. No changes or modifications of this Agreement will be valid unless it is in writing and signed by each Party to this Agreement.
7.3 Independent Contractors. The Parties are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is created by this Agreement.
7.4 Governing Law and Forum. This Agreement shall be governed, construed, and enforced in accordance with the laws of the State of Illinois, United States, without regard to its conflict of laws rules. The Parties submit that all their disputes arising out of or in connection with this Agreement to the exclusive jurisdiction of the federal and state courts located in DuPage County, Illinois.
7.5 No Waiver. A Party’s failure to exercise or delay in exercising any right, power or privilege under this Agreement shall not operate as a waiver; nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof.
7.6 Notice. Any notices required or permitted shall be given to the appropriate Party at the address specified above, or at such other address as the Party shall specify in writing, and shall be deemed effective upon actual receipt.
7.7 Assignment. The Parties may not assign this Agreement or any right or obligation of this Agreement, by operation of law or otherwise without the prior written consent of the other Party, which shall not be unreasonably withheld.
7.8 Severability. The invalidity or unenforceability of any provisions of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
7.9 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed to be an original, but all of which, taken together, shall constitute one and the same agreement.
8. REFERRAL PARTNER LEVEL DESCRIPTIONS
8.1 Upon commencing of referral partner agreement, ‘Gold Partner’ level will be assigned to the partner. Performance of each partner will be evaluated annually and level adjusted accordingly. Partners who meet or exceed business development objectives during the first year of the agreement may be awarded an upgrade in partner level (in accordance with level descriptions below) prior to the annual evaluation.
Authorized Partner. Upp Technology recognizes Authorized Partners as firms that are able submit at least one (1) qualified lead per year. When an Authorized Partner's qualified lead decides to choose an Upp Technology Product, they will receive 5% of the Enterprise License plus $100 for every user seat, each year for the duration of the contract.
Gold Partner. Upp Technology recognizes Gold Partners as firms that are able to deliver at least one (1) deal annually. We encourage them to submit at least four qualified leads annually. When a Gold Partner's qualified lead decides to choose an Upp Technology Product, they will receive 10% of the Enterprise License plus $150 for every user seat, each year for the duration of the contract.
Platinum Partner. Upp Technology recognizes Platinum Partners as firms that are able to deliver at least three (3) deals annually. We encourage them to submit at least 8 qualified leads per year. When a Platinum Partner's qualified lead decides to chose an Upp Technology Product, they will receive 15% of the Enterprise License plus $200 for every user seat, each year for the duration of the contract.
Diamond Partner. Upp Technology recognizes Diamond Partners as firms that are able to deliver at least five (5) deals annually. We encourage them to submit at least 10 qualified leads per year. When a Diamond Partner's qualified lead decides to choose an Upp Technology Product, they will receive 20% of the Enterprise License plus $250 for every user seat, each year for the duration of the contract.