Referral Agreement

This Referral Agreement is an Attachment that is incorporated by reference into the Relationship Agreement, and including any schedules, exhibits, and other attachments hereto which are entered into by the Parties hereunder (all of the foregoing, collectively, this “Agreement”) by and between CallForce, LLC DBA Reach (“Reach”) and the entity agreeing to the terms of this Agreement as indicated in the Relationship Agreement (“Company”). Company and Reach are each referred to herein as a “Party” and are collectively referred to herein as the “Parties.”

1. DEFINITIONS

The capitalize terms used herein have the meanings set forth below:

“Commission” means the amounts payable to the Referring Party by the Engaging Party as compensation for a Referred Customer.

“Discount” means the discount percentage the Engaging Party will apply to its applicable list price for the Engaging Party’s Services for a Referred Customer.  

“Referred Customer” means a new customer (other than Preferring Party) that purchases Engaging Party’s Services as a result of Referring Party’s activities under this Agreement.

“Services” means the Party’s respective services eligible for Commission an/or Discount, as respectively applicable, as provided in the Qualifying Services section of the Relationship Agreement.

“Order Document” means a sales order, statement of work, or other document used to purchase Engaging Party’s Services from Engaging Party.

“Territory”means the United States.

2. REFERRALS, COMMISSIONS, AND DISCOUNTS  

2.1 Scope of Relationship. Either Party (“Engaging Party”) may engage the other Party (“Referring Party”) to refer the Engaging Party’s Services to Referring Party’s customers in the Territory, during the Term solely in accordance with the terms and conditions of this Agreement. Each Company hereby accepts such appointment and shall at all times act and shall cause each of its agents and employees to at all times act, in compliance with the terms and conditions of this Agreement. This Agreement is non-exclusive in nature and nothing herein shall be construed as limiting or prohibiting either Party from entering into similar arrangements with third parties, whether with respect to similar or any other products, services, customers, industries, industry segments, or geographic areas. If the Relationship Agreement specifies this is a one-way referral relationship, then Company is the Referring Party and Reach is the Engaging Party, with respect to Company’s included services as specified in the Relationship Agreement. If the Relationship Agreement specifies this is a mutual referral relationship, then Reach may also be a Referring Party and Company the Engaging Party, with respect to Company’s included services as specified in the Relationship Agreement.

2.2 Commission. Subject to the terms of this Agreement and to the extent the Relationship Agreement provides for Commissions, Referring Party will earn Commission from the Engaging Party when a Referred Customer purchases Engaging Party’s Services from Engaging Party after being referred to Engaging Party by Referring Party (“Referral Commission”).

2.2.1 General Eligibility. To be eligible to earn any Commission, the following conditions must be met:

2.2.1.1 To the extent the Referred Customer purchases are for Qualifying Services;

2.2.1.2 The Referred Customer purchases must not have been ordered through a third party (such as a reseller or distributor);

2.2.1.3 The Engaging Party must have received full payment of all applicable fees from the Referred Customer;

2.2.1.4 The Referred Customer’s right to a refund must have expired;

2.2.1.5 The Referring Party must have provided all tax documentation that the Engaging Party needs to make payments to the Referring Party, including Referring Party’s W-9.

2.2.2 Referral Commission.  To be eligible to earn Referral Commission, the following conditions must be met:

2.2.2.1 Referring Party must have submitted the Referred Customer’s contact information to Engaging Party through the applicable partner portal, directly to Engaging Party’s partnerships or sales team, or through other means specifically defined by Engaging Party;

2.2.2.2 At the time Referring Party submits the Referred Customer’s contact information to Engaging Party, the Referred Customer must not be currently entered into Engaging Party’s lead and customer management system as an opportunity;

2.2.2.3 The Referred Customer must purchase Services from Engaging Party within six months of the initial referral by Referring Party, determined by the effective date of the Order Document;

2.2.2.4 Any submission of a Referred Customer’s contact information must be made in good faith based on Referring Party’s actual contacts with the Referred Customer; and

2.2.2.5 If two or more Referring Parties submit the same Referred Customer to Engaging Party within a six-month period, the first Referring Party to submit the Referred Customer will earn the Commission unless (i) the referral by the first Referring Party is “closed” in Engaging Party’s systems due to inability to complete a sale, and (ii) the eventual sale is the direct result of the subsequent referral that occurs after the opportunity is “closed,” in Reach’s sole discretion.

2.2.3 Calculation.

2.2.3.1 Commission is calculated by multiplying the applicable percentage set forth in the Relationship Agreement (in the Commission and by Company section) and Net Revenue.  “Net Revenue” means the gross invoiced amount of the first year’s Service Fees for the Services set forth in Referred Customer’s first purchase of Services, less credited charges, refunds, chargebacks, or invoice adjustment.  Net Revenue excludes: (a) charges in connection with upgrades made to a Referral’s subscription plan during its subscription term or to a Referral for exceeding its subscription plan level (such as exceeding the number of transactions included in a Order Document); (b) postage, fax, insurance, or other administrative charges; and (d) any taxes, interest, fines, or other charges or assessments imposed or levied by a governmental agency.

2.2.3.2 If Referring Party receives Commission under this Agreement, Referring Party will not be eligible to receive Commission under any other Engaging Party partner program for the same order of Services.

2.2.3.3 Revenue Share Term. Notwithstanding anything to the contrary in this Agreement, the Referring Party shall only be entitled to receive Commission payments for the first twelve (12) months of each Referred Customer’s active subscription. No Commission shall be payable on any renewal terms or subsequent purchases made by such Referred Customer after the initial twelve (12) months.

‍2.3 Fees and Payment.

2.3.1 Payment.  Engaging Party will pay Commission payments (“Payment(s)”) on a quarterly basis. Payment will be made within 30 days of the end of the quarter in which Engaging Party invoiced the Referral. Engaging Party will track commissionable sales to Referrals and make those reports available to Referring Party. The form, content, and frequency of the reports may vary from time to time in Engaging Party’s sole discretion.

2.3.2 Offsets and Refunds. Subject to Section 2.5.4 (Claims) below, Engaging Party may deduct or offset amounts owed by Referring Party to Engaging Party from any Payments. For example, if any amount is paid to Referring Party in error, Engaging Party may deduct such erroneously paid amount from subsequent Payments.  If a Referral does not pay the invoiced amounts or a refund is issued to a Referred Customer, and a Commission was previously paid to Referring Party based on the amount that was invoiced, Engaging Party may offset the amount of the Commission paid on the unpaid Referred Customer invoice or refunded amount from a future Payment.  If the amount owed by a Party under this section exceeds the Payments owed to such Party, such Party will pay to the other Party such excess amount owed within 30 calendar days of the date of the other Party’s invoice.

2.3.3 Taxes. Except as expressly otherwise provided below in this Section 2.3.3: (i) the fees payable to Referring Party under this Agreement do not include any applicable taxes, including, but not limited to, sales, use, excise, value-added, business, services, goods and services, consumption, customs and import duties, and all similar levies, duties, and taxes imposed at any time (now or in the future) by any relevant jurisdiction Taxes in connection with this Agreement or the purchase, sale, resale, or provision of any services pursuant to this Agreement (collectively, “Taxes”). Referring Party is responsible for taxes based on its net income, employment taxes regarding its personnel, applicable social taxes, and for taxes on any property it resells and similar duties and levies.

2.3.4 Claims. Any claim for any unpaid, underpaid, or overpaid Commission made by either Party must be submitted to the other Party in writing within 12 months after the event giving rise to the claim. Following the expiration of that 12-month period, each Party agrees to waive any and all rights to assert a claim for such unpaid, underpaid, or overpaid Commission.

2.3.5 Expenses. Both Parties shall be solely responsible for their own, and shall pay, any out-of-pocket expenses that each incurs in connection with any referral opportunities described in this Section.

2.4 Discounts.

2.4.1 Discounts. Subject to the terms of this Agreement and to the extent the Relationship Agreement provides for Discounts, Referring Party may offer a Discount to a Referred Customer and Engaging Party will honor such Discount.

2.4.2 General Eligibility. For a Referred Customer to be eligible to receive a Discount, the following conditions must be met:

2.4.2.1 Referring Party offered the Discount to a Referred Customer that was not be part of a general, public offering;

2.4.2.2 Referring Party offered the Discount confidentiality;

2.4.2.3 Any submission of a Referred Customer’s contact information must be made in good faith based on Referring Party’s actual contacts with the Referred Customer; and

2.4.2.4 The Referred Customer purchases must not have been ordered through a third party (such as a reseller or distributor);

2.4.2.5 Referring Party must have submitted the Referred Customer’s contact information to Engaging Party through the applicable partner portal, directly to Engaging Party’s partnerships or sales team, or through other means specifically defined by Engaging Party;

2.4.2.6 At the time Referring Party submits the Referred Customer’s contact information to Engaging Party, the Referred Customer must not be currently entered into Engaging Party’s lead and customer management system as an opportunity;

2.4.2.7 The Referred Customer must purchase Services from Engaging Party within six months of the initial referral by Referring Party, determined by the effective date of the Referred Customer submission according to Section 2.4.2.5.

3. GENERAL TERMS FOR REFERRED CUSTEROMS

3.1 General Duties. Referring Party shall at all times in connection with this Agreement and the services: (a) represent Engaging Party in good faith and in a professional and ethical manner; (b) not solicit a Referred Candidate in a way that would make Referring Party ineligible to earn a Commission or the Referred Customer to receive a Discount (for example, a Referring Party cannot generally and publicly advertise the Discount); (c) engaging in any illegal, unfair, or deceptive trade practices; (d) reasonably cooperate with Engaging Party regarding any sales and marketing programs and promotions; (e) report any Customer complaints regarding the Services to the Engaging Party for Engaging Party to exclusively provide support..

3.2 Pricing. While Engaging Party may consult with Referring Party regarding any particular Referred Customer, Engaging Party will control all aspects of pricing and account strategy. Engaging Party may adjust pricing for their respective services in its sole discretion from time to time.

3.3 Prohibited Conduct. Neither Party shall, directly or indirectly: (a) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any of the other Party’s services or any other software provided by the other Party and contained or included within, or used with, any of the other Party’s services; (b) sell, encumber, time-share, rent, license, or lease any of the Other Party’s services; (c) adapt, translate, localize, port, or otherwise modify the any of the other Party’s services; (d) remove, obliterate, or obscure any copyright, trademark, confidentiality, or other proprietary notice or legend appearing on the other Party’s services, or on any other material related to or produced by the other Party’s services; (e) knowingly permit any third party to engage in any of the foregoing conduct; (f) resell the other Party’s services; or (h) provide the other Party’s customers with support for issues related to the other Party’s services.

4. PROPRIETARY RIGHTS

4.1 Ownership. Reach’s Services (including, but not limited to all Software, code, APIs, databases, indexing, search and retrieval methods and routines, hypertext markup language (“HTML”) code, active server pages (“ASP”), intranet pages, marketing materials and content, and similar materials contained in any of the foregoing) and the Marks (as defined below) constitute the valuable intellectual property and proprietary material of Reach and its licensors.  All such material, all modifications, enhancements, and derivative works thereof, and all domestic and foreign intellectual property and proprietary rights pertaining thereto (including the rights to any modification, extension, improvement, enhancement, configuration or derivative work of the Solutions or any of the foregoing elements thereof), are and shall remain exclusively the property of Reach and its respective licensors.

Company’s services and the Marks (as defined below) constitute the valuable intellectual property and proprietary material of Company and its licensors.  All such material, all modifications, enhancements, and derivative works thereof, and all domestic and foreign intellectual property and proprietary rights pertaining thereto (including the rights to any modification, extension, improvement, enhancement, configuration or derivative work of the Solutions or any of the foregoing elements thereof), are and shall remain exclusively the property of Company and its respective licensors.

4.2 Trademarks. A Party shall not use, or permit anyone under their control to use, any trademarks, service marks, trade names or logos of the other Party (collectively, “Marks”), except that a Party shall have the right to use such Marks solely in connection with the marketing of the other Party’s Services pursuant to this Agreement and only in such manner as expressly approved in advance and in writing by the other Party.  Company shall submit a sample or copy of any proposed advertising, and any letterhead, brochure or other material displaying any such Marks for Engaging Party’s approval reasonably in advance of when such advertising or other materials are desired to be used.    

5. CONFIDENTIALITY

5.1 Confidential Information. In performance under this Agreement, each Party will have access to certain Confidential Information of the other Party or that the other Party is required to maintain as confidential pursuant to agreements with third parties. As used herein, “Confidential Information” means the Relationship Agreement at all attachments and, with respect to either Party, all written or oral information disclosed to the other Party that relates to the business or operations of the disclosing Party and that is identified as confidential at the time of disclosure or that ought reasonably to be understood and treated as confidential, including, but not limited to, technical and non-technical data, marketing and promotional information, software programs and code (regardless of form or language), methods, techniques, strategies, processes, customer, employee and supplier information, trade secrets, distribution methods, and pricing and financial data. Both Parties’ Confidential Information includes the Services, Solutions, and Software, and any related documentation and materials provided by either Party, all of which are deemed to constitute and comprise trade secrets of the applicable Party. Notwithstanding the foregoing, Confidential Information shall not include any given information if and to the extent that the information: (a) is or has become part of the public domain through no act or omission of the receiving Party; (b) was already in the receiving Party’s lawful possession, without obligations of confidentiality, prior to disclosure hereunder; (c) was rightfully communicated to the receiving Party, without obligations of confidentiality, by a third party; or (d) was independently developed by the receiving Party without use of the other Party’s Confidential Information. Each Party shall maintain the Confidential Information of the other Party in strict confidence, using at least the same level of care that it uses to protect its own information of a similar nature, but not less than a reasonable standard of care. Each Party shall use and disclose the Confidential Information of the other Party only as necessary and appropriate for performance under this Agreement and the achievement of the purposes specifically described in this Agreement.  Neither Party shall disclose Confidential Information of the other Party except to such Party’s authorized employees and contractors that are bound by obligations of confidentiality substantially similar to those set forth herein and reasonably need such Confidential Information to fulfill their duties and responsibilities for such Party. Upon the request of either Party at any time, and within thirty (30) days after any termination or expiration of this Agreement, each Party shall promptly return or securely destroy all Confidential Information of the other Party, provided, however, that: (i) if a legal proceeding of which a Party is aware has been instituted to seek disclosure of the Confidential Information of the other Party or with respect to which such Confidential Information is material, such Confidential Information shall not be destroyed by such Party until the proceeding is settled or a final judgment with respect thereto has been rendered; and (ii) any Confidential Information of the other Party held in archives or back-up systems of the receiving Party shall be allowed to expire and be deleted or destroyed in accordance with the receiving Party’s reasonable archiving or backup policies that are consistent with industry standards. As between the Parties, each Party’s Confidential Information shall be and remain solely the property of such Party. Each Party may disclose and retain Confidential Information of the other Party to the extent required: (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party required to make such disclosure first provides, unless prohibited by applicable law, written notice to the other Party, affording it an opportunity to obtain a protective order; or (y) to establish or enforce such Party’s rights under this Agreement.

5.2 Personal Information. In collecting, processing, recording, storing, disclosing, transferring, using, or disclosing Personal Information (as defined below) under this Agreement, each Party shall comply with all applicable privacy and data protection laws, regulations, and guidelines of any relevant jurisdiction (collectively, “Privacy Laws”), and shall only use and disclose Personal Information as necessary to perform its obligations under this Agreement. As used in this Agreement, “Personal Information” means any information that identifies, or that provides a reasonable basis for enabling the identification of, any individual.

6. TERM AND TERMINATION

6.1 Term. The term of this Agreement shall commence on the Effective Date and, unless terminated by either Party in accordance with Section 6.3 hereof, shall continue in force for an initial period of one (1) year.  This Agreement automatically renews and will be extended for additional one (1) year periods upon the expiration of the initial term or any renewal term, unless the other party provides the other with notice of non-renewal prior to the end of the then-current term (the initial term and any renewal terms, collectively, the “Term”).

6.2 Modification. Except as may otherwise be provided in the Agreement, Reach may modify this Agreement. If Reach modifies this Referral Agreement, it will provide written notice to Company of those modifications at least 30 days prior to the effectiveness of the modifications.

6.3 Termination. Either Party may terminate this Referral Agreement at any time, with or without cause, by giving the other party written notice of termination.  The Referring party is eligible to earn Referral Commissions only for orders that are placed by Referrals during the Term, and Commissions earned through the date of termination will remain payable only if the orders are not canceled or returned. Engaging Party may withhold Referring Party’s final payment for a reasonable time to ensure that the correct amount is paid.

6.3.1 No Termination Liability. Each Party understands that the rights of termination hereunder are absolute. Neither Party shall incur any liability, or be obligated to pay any compensation, whatsoever for any damage (including, but not limited to, damage to or loss of goodwill or investment), loss or expenses of any kind suffered or incurred by the other Party as a result of, arising from, or incident to any termination of this Agreement made in accordance with the terms of the Agreement (including any fees that would have otherwise been due to Company), regardless of whether such Party is aware of the possibility of any such damage, loss or expenses.

6.3.2 Effect of Termination or Expiration. Except as otherwise provided in the Agreement, upon termination or expiration of this Referral Agreement:

6.3.2.1 All rights and licenses granted under this Agreement will immediately cease;

6.3.2.2 Each Party will immediately stop using and either destroy or delete any Confidential Information provided by the other Party under this Agreement, other than Confidential Information in automatic computer backups or that must be retained for regulatory, legal, or audit purposes or for compliance with its document retention policies, provided that any retained Confidential Information will be subject to the confidentiality provisions of this Agreement as long as it is retained; and

6.3.3 Those provisions of this Agreement that by their nature should survive termination or expiration will survive, including, but not limited to, ownership provisions, confidentiality, disclaimers, indemnities, and limitations of liability.

7. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS

7.1 Representations and Warranties.  

7.1.1 Power and Authority. Each Party represents, warrants, and covenants that it has the requisite legal and corporate power and authority to enter into this Agreement and to perform and fulfill its duties and obligations under this Agreement, and that such entry and performance does not and shall not violate or constitute a conflict of interest with the rights of any third party, or constitute a default or breach of any agreement by which such Party is bound.

7.1.2 Statements. Each Party represents, warrants, and covenants that it shall make no misrepresentation or untrue, tarnishing, or defamatory statements concerning the other Party, its agents, employees, suppliers, or business, any customers of the other Party, or the quality or technical features and capabilities of the other Party’s services, or any other statements to third parties that are inconsistent with the terms of this Agreement. A Party shall in no event make any statements to any third party regarding the other Party’s services (or a Party’s obligations or warranties regarding their services) or offer or agree to with any third party any terms and conditions for the sale or provision of the other Party’s services, that are inconsistent with the terms of this Agreement.

7.1.3 Competency. Each Party represents, warrants, and covenants that such Party and each of its applicable employees, agents, and subcontractors, if any, are and shall be adequately qualified and competent to perform their respective duties and obligations in connection with this Agreement, and that all such duties and obligations shall be performed in a professional, workmanlike manner, in compliance with all applicable laws and regulations and the terms of this Agreement.  

7.2 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (A) NEITHER PARTY MAKES ANY WARRANTIES IN CONNECTION WITH THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, THE PROGRAMS, THE PARTNER PORTAL, AND THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

8. MUTUAL INDEMNIFICATION

A Party (“Indemnifying Party”) shall indemnify, defend, and hold the other Party (“Indemnified Party”), and its officers, directors, employees, and agents, harmless from and against any claim, action or proceeding brought by any third party, and any associated losses, liabilities, damages, costs, and expenses (including attorney’s fees) sustained or incurred, to the extent arising out of or resulting from a Party’s breach of this Agreement. The Indemnified Party shall promptly: (a) notify the Indemnifying Party in writing upon becoming aware of any indemnified claim; (b) provide the Indemnified Party with sole control over the defense and settlement of any indemnified claim, except that Indemnifying Party may reasonably participate in such defense (but not control such defense or settle the claim), at its expense, with counsel of its choice; and (c) reasonably cooperate with the Indemnified Party regarding the indemnified claim. The Indemnified Party shall not settle or compromise any indemnified claim in any manner that imposes any admissions of fault or wrongdoing of, or obligations upon the Indemnifying Party without the prior written consent of the Indemnifying Party.

9. LIMITATIONS OF LIABILITY

9.1 Exclusion of Claims. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR LOST PROFITS DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE, INCLUDING DAMAGES FOR LOSS OF DATA, GOODWILL, INVESTMENTS, USE OF MONEY OR USE OF FACILITIES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK, OR IMPAIRMENT OF OTHER ASSETS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (I) THE PERFORMANCE OR NONPERFORMANCE OF THE AGREEMENT OR OF PRODUCTS, SOFTWARE, SERVICES PROVIDED UNDER THE AGREEMENT, OR (II) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT, INDEMNITY, OR ANY EXPRESS OR IMPLIED WARRANTY, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT. THE PREVIOUS SENTENCE WILL NOT APPLY TO A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 5 (CONFIDENTIALITY) OR AN INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS SET FORTH IN SECTION 4 (PROPRIETARY RIGHTS).

9.2 Limitation of Liability. Engaging Party’s aggregate liability will not exceed the fees paid or payable by Engaging Party to Referring Party under the Agreement in the six-month period immediately preceding the event giving rise to the claim. The previous sentence does not apply to a Party’s confidentiality obligations set forth in Section 5 (Confidentiality), to a Party’s obligations to pay fees and expenses when due and payable, or to any infringement or misappropriation by a Party of any Intellectual Property rights of the other Party.

9.3 Limitation of Claims. Except with respect to claims of infringement or misappropriation of any Intellectual Property or misuse of Confidential Information, neither Party may bring any claim relating to the Agreement more than one year after the events giving rise to the claim occurred.

9.4 Additional Rights. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply and the Parties may have additional rights.

10. GOVERNING LAW; ARBITRATION

10.1 Governing Law. This Agreement shall be governed by and construed under the substantive laws of the State of Utah, without regard to conflicts of laws provisions. The Arbitration Provision that follows in Section 10.2 (Arbitration) below are also governed by the Federal Arbitration Act, 9 U.S.C. § 1 et. al.

10.2 Arbitration. Any dispute arising out of relating to this Agreement or the subject matter thereof, or any breach of this Agreement, including any dispute regarding the scope of this clause, shall be resolved confidentially and exclusively through the following means:

10.3 Notice. Before filing a claim for arbitration, a Party must notify the other party of its intent to file and offer to address the issues in dispute through negotiation or mediation; no arbitration claim may be filed sooner than sixty (60) calendar days after such notice is provided.

10.4 Rules. The American Arbitration Association (AAA’s) rules for commercial disputes will apply to any disputes between the parties, unless specifically contradicted by any provisions of this Arbitration Provision. All hearings shall be conducted virtually (such as by a teleconference platform) or in person in Draper County, Utah.

10.5 Individual Arbitration and Waiver of Rights. Claims may not be aggregated with those of other persons/entities or otherwise consolidated; the parties agree herein to individual arbitration of their disputes. The Parties agree to waive any rights to assert or participate in a class action claim or to adjudication by a judge or jury.

10.6 Confidentiality. The Parties agree to disclose the existence of any arbitration, information about what has taken place or may take place in an arbitration, the award, or information about the outcome of this arbitration, only as needed to: (a) present claims and defenses in arbitration; (b) pursue or oppose legal remedies in court pertaining to this arbitration, including enforcement of an award; (c) comply in good faith with Applicable Law; or (d) comply with the award. In all other respects, the Parties agree to keep any arbitration strictly confidential. The Parties further reserve the right to enter into, or request from the arbitrator, a more detailed or restrictive confidentiality agreement or protective order.

10.7 The parties further agree:

If less than $50,000 in damages, fees, and costs are at issue, then the parties agree to a streamlined, one-day telephonic or video conference arbitration before an arbitrator assigned by the AAA or otherwise mutually selected by the parties. The parties further agree that no written discovery or depositions will be permitted prior to the hearing, and that no more than 15 pages of legal briefing (plus exhibits) may be submitted for the arbitrator’s review by either party.  

If between $50,000 and $500,000 in damages, fees, and costs are at issue, if the parties cannot agree on an arbitration provider or individual arbitration to oversee their dispute, then the parties agree that they will ask the AAA for a list of eight potential arbitrators and will rank those arbitrators for selection of one arbitrator by AAA, which would then administer the arbitration. The arbitrator will issue a final order that includes the facts and legal authorities supporting the decision.

If more than $500,000 in damages, fees, and costs are at issue, then the parties agree that the arbitration should be conducted by a panel of three arbitrators: one arbitrator appointed by each Party and the third, who shall be the presiding arbitrator, appointed by the agreement of the Parties. The arbitrators will issue a final order that includes the facts and legal authorities supporting their decision.

Each party shall pay its own legal fees and will equally share the costs of arbitration (i.e., the arbitrator’s fees and expenses, plus any administrative fees); the only exception is that should the arbitrator find that claims were asserted in bad faith, then the arbitrator(s) has the discretion to award a party its attorneys’ fees. The arbitrator may not award damages precluded by this Agreement.

In instances where more than $50,000 in damages, fees, and costs are at issue, the arbitrator(s) lacks authority to make errors of law in rendering a decision.

11. GENERAL

11.1 Payment Information. If Referring Party is to receive payments pursuant to a Relationship Agreement, Referring Party shall promptly provide Engaging Party with any documentation reasonably required by Engaging Party, including, for example, a W-9.

11.2 Independent Contractors. The Parties intend to be, are, and shall at all times be independent contractors with respect to their relationship pursuant to this Agreement. Neither Party shall be entitled to act as an agent of the other Party, to negotiate or enter into any agreements, or to incur any obligations on behalf of the other Party, except as expressly provided in this Agreement.  No form of joint employer, joint venture, partnership, franchising, or similar relationship between the Parties is intended or hereby created.

11.3 Choice of Law. This Agreement shall be governed by and construed under the substantive laws of the State of Utah, United States of America, without regard to any choice of law provisions. The exclusive venue for any claim or action brought in connection with this Agreement shall be the state and federal courts situated in Salt Lake City, Utah.  The Parties hereby irrevocably submit and consent to the personal jurisdiction of such courts for such purpose and waive any objection or claim that such venue is improper for any reason in such courts.

11.4 Severability. Every provision of this Agreement shall be construed, to the extent possible, so as to be valid and enforceable.  If any provision of this Agreement so construed is held by a court of competent jurisdiction to be invalid, illegal, or otherwise unenforceable, such provision shall be deemed severed from this Agreement and all other provisions shall remain in full force and effect.

11.5 Non-Waiver. The failure by either Party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy, or option or in any way affect the validity of this Agreement.  The waiver of any default by either Party shall not be deemed a continuing waiver but shall apply solely to the instance to which such waiver is directed.

11.6 Assignment. Neither Party may assign, delegate, or otherwise transfer this Agreement or any of its rights or obligations hereunder, either voluntarily or by operation of law, without the prior written consent of the other Party (such consent not to be unreasonably withheld), except that either Party may assign this Agreement without the other Party’s consent in the event of a sale of all or substantially all of its assets, or in the event of a merger, corporate reorganization or business consolidation of the Party. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

11.7 No Third-Party Benefit. Except as expressly provided herein, the provisions of this Agreement are for the sole benefit of the Parties hereto, and this Agreement confers no rights, benefits, or claims upon any person or entity not a Party hereto.

11.8 Force Majeure. Neither Party will be responsible for failure or delay of performance caused by circumstances beyond its reasonable control, including earthquake, storm, or other act of God; labor disputes; electrical, telecommunications, or other utility failures; embargoes; riots; acts of government; or acts of terrorism or war. A Party seeking relief from performance under this Section must (i) provide notice of such circumstances to the other Party as soon as practicable, (ii) use all commercially reasonable efforts to avoid or mitigate such circumstances, and (iii) resume performance as soon as practicable upon the cessation of the circumstances. If the failure or delay continues for more than 30 days, the other Party may, in its discretion, terminate this Agreement. That termination will not result in any liability by either Party.

11.9 Notice. All notices required hereunder shall be in writing and shall be deemed to have been given when delivered by first class registered or certified U.S. mail or nationally recognized express carrier to the respective address of the applicable Party, as such address may be updated by the applicable Party from time to time by notice delivered in accordance herewith. Notices to Reach for account notices shall be sent to partnerships@Reach.com and legal notices sent to legal@Reach.com.

11.10 Execution. This Agreement may be executed in one or more counterparts, each of which counterparts shall be deemed an original but which counterpart together shall constitute the same agreement. Each Party agrees to be bound by its digital or electronic signature, whether transmitted in the form of an electronically scanned image (e.g., in .pdf form) or effected through means of e-signature technology, and each Party agrees that it shall accept the signature of the other Party transmitted in such a manner.

11.11 Anti-Corruption. Company represents and warrants that, to the best of its knowledge after due inquiry, neither Company nor any of its corporate affiliates, nor any of their respective directors, officers, employees or agents,  has taken any action, directly or indirectly, that would constitute a violation, or implicate Company in a violation, of any laws or regulations of the United States of America or any other jurisdiction in which Company conducts business, including, but not limited to, the U.S. Foreign Corrupt Practices Act of 1977, as amended, and, to the extent applicable, any anti-bribery or anti-corruption legislation enacted by any other countries in which Company operates or performs in connection with this Agreement (all such laws and regulations, collectively, “Anti-Corruption Laws”). Company represents that, to the best of its knowledge after due inquiry, it and its affiliates have conducted their businesses in compliance with all Anti-Corruption Laws and have instituted and shall maintain policies and procedures designed to assure, and which are reasonably expected to continue to assure, continued compliance therewith.

11.12 Publicity. All press releases, publicity, marketing or sales materials, or other materials developed by or on behalf of either Party that refer to this Agreement or the relationship between the Parties, or that otherwise use any name or trademark of the other Party, shall be subject to prior review and written approval by the other Party.

11.13 Suggestions. Many of Reach’s changes to user interfaces, features, and functionality of the Services come as a result of suggestions made by customers or other applicable third parties, whether in the form of suggestions, enhancement requests, recommendations or other feedback provided relating to the Reach Services (“Suggestions”). All customers benefit from Reach incorporating Suggestions in future releases of the Reach Services. Company hereby grants to Reach an irrevocable, worldwide, royalty-free, perpetual license to use as Reach deems appropriate any Suggestions that Company or any Customer provides to Reach, to incorporate such Suggestions in any form into the Reach Services, and to exercise any other rights with respect to such Suggestions, even if Company has designated the Suggestions as confidential. Reach shall be entitled to use any Suggestions without restriction and without obligation to Company, provided that Reach removes from any Suggestions any information that identifies, or that would provide a reasonable basis to identify, Company, any of its products or services, any Customer, or any individual.

11.14 Entire Agreement. The Relationship Agreement and this Referral Agreement, and all other terms incorporated by reference, constitutes the entire agreement and understanding between the Parties. Except as provided in Section 6.2 (Modification) of this Agreement, this Agreement may not be modified or amended except by a written instrument executed by both Parties.