This Referral Agreement (Agreement) is entered into by and between Epicor Software Corporation (Epicor) and the Referral Organization as of the date signed by Epicor (the “Effective Date”).
Epicor and Referral Organization agree:
Background
Epicor has developed and owns, or has the right to license, certain software and SaaS-based product applications and associated documentation (Products); and Epicor has established a Referral Program that is described in its Referral Program Guide, and Referral Organization recommends Epicor’s Products to prospective customers.
Authorization
Authorization. Epicor hereby grants to Referral Organization the non-exclusive, non-transferable, non-sublicensable right to market the Software to prospective customers
Promotion. Referral Organization will use commercially reasonable efforts to market and promote the Software to prospective customers [in the Territory].
Referral Program Guide. Referral Organization must adhere to the Customer Referral Program Guide located at Epicor site, may modify the Referral Program Guide at its discretion.
Representations to Customers. Referral Organization does not make, and full indemnifies Epicor for, any representations, warranties, or guarantees about the Products that are inconsistent with or in addition to those made in: this Agreement, Product documentation, Epicor’s Product Supplements, or in Epicor’s published marketing materials.
Grants
Partner Trademarks. During the term of this Agreement, Referral Organization grants Epicor the limited right to publish Referral Organization’s name, trade names, trademarks and/or logos (Trademarks) about Referral Organization’s participation in Epicor’s referral program. All other rights of Epicor are reserved.
Epicor Trademarks. During the term of this Agreement, Referral Organization may refer to itself as an “Epicor Referral Partner” and Epicor grants to Organization the limited right to use Epicor’s Trademarks (including any applicable partner-type or level logos) solely for the purpose of marketing the Products and to identify it as an authorized Epicor partner. Organization must comply with Epicor’s trademark usage guidelines.
Ownership. Except as provided in this Grant Section, this Agreement does not grant a party any right, title, interest, or license in or to the other party’s (or such party’s affiliates’ or licensors’) names, word marks, logos, logotypes, trade dress, designs or other Trademarks and any grant not made is otherwise reserved. Neither party may register, adopt or use any name, Trademark, domain name or other designation that includes any part of the other party’s (or such party’s affiliates’ or licensors’) names or other Trademarks or any term that is confusingly similar to the other party’s (or such party’s affiliates’ or licensors’) names or other Trademarks.
Payment
Referral Fees. Subject to this Agreement, Referral Organization is eligible to receive payment (Referral Fees) for approved referrals. Among other requirements set forth in the Program Guide(s), Referral Organization must pre-register each lead with Epicor, and Epicor must accept the lead, in its sole discretion. Payment for approved leads will be made in the manner and subject to the terms and conditions set forth in the applicable Program Guide(s).
Confidentiality
Confidential Information. In this Agreement “Confidential Information” means all information disclosed by a party (Disclosing Party) to the other party (Receiving Party) in connection with this Agreement. Confidential Information includes, without limitation, the Products, copies, or abstracts made thereof as well as any modules, samples, prototypes, or parts thereto, and the details of the employees of the parties or their Affiliates. Confidential Information does not include any information that is (i) already known to the Receiving Party or received by the Receiving Party from a third party, free of any obligation to keep it confidential; (ii) or becomes publicly known through no wrongful act of the Receiving Party; (iii) independently developed by the Receiving Party; or (iv) approved for release by the Receiving Party prior written authorization of the Disclosing Party.
Confidentiality. The Receiving Party will not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement without the Disclosing Party’s prior written permission.
Protection. The Receiving Party will keep confidential all Confidential Information disclosed to it by the Disclosing Party, and to protect the confidentiality of Confidential Information in the same manner as it protects the confidentiality of its own, being no less than reasonable skill and care.
Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it must provide the Disclosing Party with prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
Return. Receiving Party will return all originals, copies, and summaries of the Confidential Information upon termination or expiration of this Agreement or upon Disclosing Party’s request, or in the alternative, at Disclosing Party's option, certify in writing to Disclosing Party that all such Confidential Information has been destroyed.
Duration. The obligations with respect to Confidential Information will survive for Five (5) years following termination or expiration of this Agreement.
Compliance
Compliance with Law and Brand Representation Standards. Referral Organization must comply with all applicable laws and regulations in its marketing activities and actions and may not engage in any deceptive, misleading, or unethical marketing activities that may be detrimental to Epicor, its products, or services. Additionally, Referral Organization must represent Epicor and its products and services to existing and prospective customers and the public and perform its obligations in a manner that, in Epicor’s judgment, reflects well upon Epicor and its brands.
Anti-Corruption. Referral Organization will comply with all applicable laws against bribery, also corruption and money-laundering, including without limitation, the U.S. Foreign Corrupt Practices Act, and where applicable the U.K. Bribery Act (collectively, “Anti-Corruption Laws”), in its activities and must promptly inform Epicor in writing upon becoming aware of any violations of any Anti-Corruption Laws in connection with this Agreement. Referral Organization represents and warrants that it has not directly or indirectly offered or paid, and will not offer or pay, any money or anything else of value, to any person for the purpose of securing any improper advantage in violation of the Anti-Corruption Laws or other applicable law.
Non-Solicitation. Subject to applicable law, during the term of this Agreement and for 12 months thereafter, neither party or its affiliates will directly or indirectly solicit for employment (or as an independent contractor) or hire as a result of such solicitation any employee or independent contractor of the other party for a period of 6 months after the date such person’s employment or services contract was terminated. This Section will not restrict the right of a party or its affiliates to: (i) solicit or recruit generally in the media or online and subsequently hire, or (ii) hire or engage the other party’s employees or independent contractors who answer any general advertisement or who otherwise voluntarily apply for hire or engagement without having been initially personally solicited or recruited by or on behalf of the other party. If a party or its affiliate hires an employee or engages an independent contractor of the other party in contravention of this Section, then such party shall pay to the other party an amount equal to the salary or fees paid or to be paid to the employee or independent contractor over 12 months of their employment or engagement with the other party, such amount being a genuine pre-estimate by the parties of liquidated damages and not a penalty.
Term; Termination
Term of Agreement. The term of this Agreement begins on the Effective Date and continues through December 31 of the same calendar year (Initial Term). However, this Agreement will automatically renew for successive 1-year terms (Renewal Term), unless a party notifies the other in writing of its desire to terminate the Agreement no less than 30 days prior to the end of the Initial or Renewal Term. Epicor has no obligation to renew this Agreement or enter into a similar agreement with Referral Organization upon termination or expiration of this Agreement.
Termination without Cause. Either party may terminate this Agreement without cause at any time, effective upon 90 days prior written notice to the other party.
Termination for Cause. Either party may terminate this Agreement for cause: (i) upon 30 days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period, or (ii) immediately, upon notice if the other party breaches its compliance obligations.
Termination Effects. Expiration or termination of this Agreement for any reason will not relieve the parties of any rights or obligations accruing prior to such expiration or termination. Upon any expiration or termination (i) all of Referral Organization’s rights to market and promote the Software end, (ii) Referral Organization must immediately stop all representations that it is an Epicor partner, and (iii) each party must return to the other all Confidential Information of the other party in its possession. Epicor will make applicable payment for any referrals received and accepted prior to the effective date of termination.
Assignment. Referral Organization may not assign, license sub-license or transfer this Agreement or any rights under this Agreement, whether voluntarily or by operation of law, without Epicor’s prior written consent (e.g., any sale or transfer of assets, stock or any interest in Referral Organization, or any merger, consolidation restructuring, or other business reorganization). This Agreement is binding upon and inures to the benefit of the parties and their respective successors and permitted assigns. Epicor may freely assign this Agreement upon written notice to Referral Organization.
General
Headings. Headings in this Agreement are for convenience only and are not part of this Agreement.
Complete Agreement. This Agreement, including the Background and any supplement, amendment, or other addendum, is the entire agreement between the parties on the subject discussed in this Agreement and supersedes all other agreements, negotiations, representations, and proposals, written or oral. Neither party is relying on, and has no remedy in respect of, any statement, representation, warranty or understanding of any person other than as expressly set out in this Agreement.
Severability. If any provision of this Agreement is found to be illegal, invalid, or unenforceable, the remaining provisions will remain in full force and effect and the parties will amend the Agreement to give effect to the stricken provision to the maximum extent possible.
Modifications and Waiver. No modification, amendment, or addition to this Agreement is valid or binding unless in writing. All rights and remedies of the parties are separate and cumulative. The waiver or failure of either party to exercise any right or remedy is not a waiver of any future right or remedy.
Relationship. The parties are independent contractors. This Agreement does not create a joint venture or partnership between the parties; and no party is authorized as an agent, employee, or representative of the other party.
Business Contact Information. Partner agrees to allow Epicor and its Affiliates to store and use Partner’s business contact information, including names, business phone numbers, and business e-mail addresses, anywhere they do business. Such information will be processed and used in connection with the parties’ business relationship.
Notice. Notices hereunder shall be sent to the email and/or mailing addresses provided in the lead referral form and will be considered delivered (i) on the date shown on the postal return receipt or on the courier, facsimile, or email confirmation of delivery, or (ii) within 5 days after deposit in first class mail or registered post. Any notices to Epicor must be sent to:
General Counsel
Epicor Software Corporation
807 Las Cimas Parkway
Suite 400
Austin, TX 78746
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and taken together will constitute a single instrument.
Choice of Law. This Agreement will be governed by and construed in accordance with the laws of the State of Texas. The parties expressly waive the application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement.
BY ACCEPTING THIS AGREEMENT, THE REFERRAL ORGANIZATION ACKNOWLEDGES THAT IT HAS REVIEWED ITS TERMS AND AGREES TO BE LEGALLY BOUND BY THE SAME.
