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BY EXECUTING A PARTNER PROGRAM AGREEMENT YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.

WHEREAS, Rockerbox operates a proprietary platform application through which it offers certain products and services (collectively, the ‚ÄúServices‚ÄĚ); and
WHEREAS, Rockerbox and Referral Partner desire to enter into an agreement whereby Referral Partner will promote and market the Rockerbox Services and facilitate introductions between Rockerbox and potential customers that have expressed an interest in the type of service that Rockerbox provides;
NOW, THEREFORE, in consideration of the mutual agreements and covenants contained below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Rockerbox and Referral Partner hereby agree as follows:


1. Obligations of the Parties.

From and after the Effective Date, parties agree to fulfill certain obligations as set forth herein.

1.1 Mutual Obligations. Each party shall:
(i) designate a representative to act as a relationship manager, who will oversee that party’s activities under this Agreement, and serve as its principal point of contact to Rockerbox for the resolution of any issues that may arise under this Agreement;
(ii) work in cooperation to develop materials for Referral Partner to use to market and promote the Services, including one or more joint announcements or press releases about the relationship established pursuant to this Agreement;

1.2 Referral Partner Obligations. Referral Partner shall:
(i) notify Rockerbox promptly of new customer/prospects added to its pipeline and provide contact info to Rockerbox for direct marketing purposes; and
(ii) ensure that all personnel engaged in soliciting and/or working with prospective or existing customers are sufficiently trained to enable them to speak knowledgeably and accurately about Rockerbox and its Services.

1.3 Modification & Suspension of Platform. Referral Partner acknowledges that Rockerbox reserves the right to (i) accept or refuse any referred customer at any time, and (ii) modify or suspend its platform, products or services, in whole or in part, with respect to any individual customer or with respect to its offerings, generally, at any time at its discretion.


2. Intellectual Property
2.1 Ownership of Materials. Referral Partner acknowledges that, as between the parties, the Intellectual Property, Marketing Materials and Marks (collectively "Materials") is and will remain the sole property of Rockerbox, and no rights are granted to Referral Party under this Agreement with respect to such Materials, or the intellectual property rights therein, other than the limited licenses specified in this Agreement. For purposes of this Agreement, ‚ÄúIntellectual Property‚ÄĚ means any inventions, discoveries, devices, apparatus, technology or processes, methods, know-how, trade secrets, improvements or works of authorship, Marks, and the intellectual property rights adhering thereto, including any copyright, patent, trademark and other rights, whether or not an application has been filed or a registration granted, and any and all applications, registrations, renewals, extensions, restorations and re-instatements thereof, now or hereafter in force and effect worldwide. ‚ÄúMarks‚ÄĚ means shall mean trademarks, service marks, trade names and domain names.


2.2 Trademarks.
(i) Grant of License. Rockerbox hereby grants to Referral Partner a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, royalty free right and license, during the Term, and subject to Rockerbox’s prior review and written approval, to use Rockerbox’s Marks, solely in connection with Rockerbox’s truthful and lawful marketing and advertising of Rockerbox’s Services pursuant to this Agreement.
(ii) Quality Control. All advertising, marketing and other materials developed by or for Referral Partner using the Marks ("Partner Materials") must comply with Rockerbox’s trademark guidelines and quality standards, and shall be subject to Rockerbox’s prior written approval prior to such party's marketing or distribution of same, which shall not be unreasonably withheld, conditioned or delayed.
(iii) Benefit of the Marks. Referral Partner acknowledges that Rockerbox is the owner of all right, title and interest in and to its respective Marks, and that such party's use of Rockerbox’s Marks does not create any rights in said Marks and that all use of Rockerbox’s Marks by Rockerbox inures to the benefit of Rockerbox. Neither party will (i) attempt to register, anywhere in the world, the Marks or any trademarks that are similar to the Marks of Rockerbox, or (ii)challenge or, directly or indirectly, assert any right, title or interest in or to the Marks or any application or registration of Rockerbox.


2.3 Marketing and Promotion.
(i) Rockerbox will furnish to Referral Partner the information and marketing and promotional literature, brochures, manuals, and other materials relating to its Services (together with the Partner Materials, the ‚ÄúMarketing Materials‚ÄĚ).
(ii) Subject to the rights and licenses to the Marks granted in this Agreement, Rockerbox shall own all Intellectual Property in and to any Marketing Materials developed in connection with the marketing, promotion, and distribution of the Services.
(iii) Referral Partner will (a) accurately and lawfully advertise and market the Services in a way that is consistent with Rockerbox’s applicable documentation and marketing materials and (b) not make any representations or warranties regarding Rockerbox's Services that are inconsistent with such documentation or marketing materials.
(iv) Rockerbox will maintain a Partner Program section on its website showcasing the Partner program and its members and benefits.


3. Term &Termination.
3.1 Term. This Agreement shall be effective as of the Effective Date set forth herein, and continue for a period of two (2) year (the ‚ÄúInitial Term‚ÄĚ), after which it will automatically renew for successive two (2) year periods (each, a ‚ÄúRenewal Period‚ÄĚ and collectively the ‚ÄúTerm‚ÄĚ), unless either party provides the other written notice of its intention not to renew at least thirty (30) days prior to the commencement of the next Renewal Term.


3.2 Termination. Either party will have the right to terminate this Agreement if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of breach from the other party.


3.3 Effect of Termination; Survival.
(i) Upon the effective date of termination or expiration, for any reason (i) all rights and licenses granted to under this Agreement will terminate; (ii) Referral Partner will immediately cease using the Materials and return or destroy all Materials to Rockerbox, at Rockerbox's discretion; and (iii) all amounts which accrued prior to termination or which accrue after termination will become due within thirty (30) days of the effective date of termination.
(ii) Those sections of this Agreement that would, by their nature, be intended to survive, shall survive any termination or expiration of this Agreement.


4. Referred Customers & Revenue Share.
4.1 Revenue Share. In consideration for Referral Partner's marketing and promotion efforts, and its facilitation of introductions, Rockerbox will pay Referral Partner referral fees as referenced in the Rockerbox Partner Program Agreement. All referral fee amount will be calculated net of Rockerbox's direct costs associated with the applicable transaction (such as, taxes, credit card fees or app store commissions), as well as any refunds and credits.


4.2 Referral Process. For purposes of this Agreement "Referred Customers" include only those customers who are (i) introduced to Rockerbox by Referral Partner, and (ii) do not have a pre-existing relationship with Rockerbox. For the avoidance of doubt, a pre-existing relationship may be established by prior sales, directed efforts by Rockerbox to pitch or market to a prospect, or contacts initiated by the prospect prior to the date of the referral by Referral Partner. In order to avoid disputes with respect to whether (i) a referred prospect was actually referred by Referral Partner (ii) Rockerbox has a pre-existing relationship with any such referred persons or entities, Referral Partner will notify Rockerbox in writing of all prospective referrals prior to making an introduction, and will not make the introduction until Rockerbox has verified in writing that it does not have a pre-existing relationship with the person or entity. If Referral Partner makes an introduction prior to receiving a written confirmation, the referred person or entity will not be considered a Referred Customer.


4.3 Expenses. Each party acknowledges and agrees that it is solely responsible for its own costs of providing its services, and for any other costs, expenses or disbursements associated with the performance of its obligations pursuant to and in connection with this Agreement.


5. Confidentiality.
5.1 Definition. In this Agreement, ‚ÄúConfidential Information‚ÄĚ means all information of a party (the ‚ÄúDisclosing Party‚ÄĚ) disclosed or made available to the other party (the ‚ÄúReceiving Party‚ÄĚ) that the Receiving Party knows, or should reasonably know, to be confidential, including (i) the terms and conditions of this Agreement; (ii) the Disclosing Party‚Äôs business and marketing plans, technologies and technical information, product designs, financial information, and business processes; and (iii) all Intellectual Property and associated algorithms, specifications, source code, know-how, trade secrets and technology, and any and all information and data derived therefrom.


5.2 Exceptions. Information will not be considered to be Confidential Information to the extent, but only to the extent, that such information is: (i) or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) known to the Receiving Party free of any confidentiality or other restriction prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party and without use of or reference to any Confidential Information; or (iv) subsequently received by the Receiving Party from a third party free of any confidentiality or other restriction and without breach of any obligation owed to the Disclosing Party.


5.3 Confidentiality Obligations. Unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (i) use the Disclosing Party’s Confidential Information only as necessary to fulfill its obligations or exercise its rights under this Agreement, and not otherwise for its own benefit or the benefit of any third party; (ii) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors on a need-to know basis to fulfill its obligations or exercise its rights hereunder, subject to written confidentiality obligations at least as stringent as those included herein; and (iii) both during and for three (3) years (or, in the case of trade secrets, indefinitely) after the Term, maintain the confidentiality of the Disclosing Party’s Confidential Information using the same degree of care as the Receiving Party affords to its own confidential information of a similar level of sensitivity which it desires not to be published or disseminated, and in no event less than reasonable care, to prevent the unauthorized use or disclosure of the Disclosing Party’s Confidential Information.


5.4 Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information to the extent such disclosure is required by a valid order of a court or governmental body of competent jurisdiction and authority or by applicable law, provided that the Receiving Party will provide the Disclosing Party with reasonable prior notice of such disclosure (to the extent legally permitted) and upon request by the Disclosing Party will reasonably assist the Disclosing Party, at the Disclosing Party’s cost, to obtain an order or other relief preventing or limiting the potential disclosure or use of the Disclosing Party’s Confidential Information.


5.5 Permitted Disclosures. The Receiving Party may disclose the Disclosing Party’s Confidential Information to its legal, accounting and tax advisors to the extent that such disclosure is required for a bona fide legal, accounting or tax purpose, provided that the Receiving Party will ensure that such persons comply with the requirements and restrictions set forth in items (a), (b) and (c) of Section 15.3.


5.6 Remedies. Each party acknowledges and agrees that, in the event of a breach or threatened breach by the Receiving Party of any of the provisions of this Section 6, damages will not be an adequate remedy for the Disclosing Party and, accordingly, the Disclosing Party may be entitled, in addition to any other remedies available to it, to seek injunctive relief against such breach or threatened breach without the necessity of posting a bond.


5.7 Return of Confidential Information. Upon the Disclosing Party’s written request upon expiration or termination of this Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will (i) promptly (x) deliver to the Disclosing Party all tangible originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information in the Receiving Party’s possession, power or control, (y) delete or destroy from all documents, records, data and materials, or part thereof, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and (z) use commercially reasonable efforts to delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases, subject to its standard data retention policies (e.g., regarding legal holds); and (ii) promptly cause all persons to whom it has provided any of the Disclosing Party’s Confidential Information to comply with this Section 6.7.


6. Mutual Representations and Warranties.

Each party represents and warrants that: (i) it is duly incorporated or organized, validly existing, and in good standing under the laws of its jurisdiction of its incorporation or organization; (ii) it has all necessary rights and the corporate power and authority to enter into this Agreement, perform the obligations required, and it will fulfill its obligations pursuant to this Agreement in accordance with all applicable local, state, federal laws and regulations in connection with this Agreement; (iii) this Agreement constitutes a legal, valid and binding agreement of such party, enforceable against such party in accordance with its terms; (vi) the execution, delivery and performance of this Agreement does not and shall not conflict with or result in a violation of the organizational documents of such party or any agreement with a third party.

7. Disclaimer.

EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, SERVICES AND MATERIALS ARE PROVIDED BY ROCKERBOX "AS IS" AND "WITH ALL FAULTS" AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.


8. LIMITATION OF LIABILITY.


8.1 EXCEPT WITH RESPECT TO EITHER PARTY’S BREACH OF SECTION 6 OR 7, OR ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL (I) EITHER PARTY, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL, WILLFUL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST PROFITS, LOST REVENUE, OR LOSS OF BUSINESS, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF EITHER PARTY, ITS AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS HAVE BEEN NOTIFIED OF THE POSSIBILITY THEREOF, OR (II) EITHER PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEEDTHE AMOUNT PAID BY ROCKERBOX TO REFERRAL PARTNER WITHIN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT OR CIRCUMSTANCES THAT GAVE RISE TO LIABILITY.


9. Indemnification.
9.1 General Indemnification. Each party (the ‚ÄúIndemnifying Party‚ÄĚ) will defend, indemnify and hold harmless the other party, its directors, officers, employees, and agents (collectively, the ‚ÄúIndemnified Party‚ÄĚ) against any claim, demand, cause of action, debt or liability, including reasonable attorney‚Äôs fees by a third party ("Claim") to the extent that it is based upon (i) the Indemnifying Party‚Äôs alleged breach of any of its representations, warranties or obligations under this Agreement; (ii) the Indemnifying Party‚Äôs alleged violations of law; or (iii) the Indemnifying Party‚Äôs alleged reckless, negligent or willful acts.


9.2 Procedures. The Indemnified Party agrees to provide the Indemnifying Party with (a) written notice of any claim for which indemnification is being sought within ten (10) days after the Indemnified Party receives notice of such claim, (b) the right to control and direct the investigation, defense, resolution and settlement of such claim, and (c) reasonable cooperation with the Indemnifying Party. The Indemnified Party may at its own expense, assist in such defense provided that the Indemnifying Party shall control such defense and all negotiations relative to the settlement of any such claim. Failure to provide timely notice does not void obligation except to the extent it prejudices the Indemnifying Party.


10. Cumulative Remedies.

Except as otherwise set forth herein, the parties’ respective rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies to which the parties may be lawfully entitled under this Agreement or at law or equity, and the parties will be entitled to pursue any and all of their respective rights and remedies concurrently, consecutively and alternatively.

 

11. Miscellaneous.


11.1 Notice. Any notice required to be delivered hereunder shall be in writing and shall be sent by electronic mail (valid only with confirmation of receipt), U.S. Mail or by recognized overnight courier (such as UPS or FedEx) at the address set forth above, as may be updated by notice given in accordance with this Section 11.1.


11.2 Force Majeure. Nonperformance of either party shall be excused to the extent that performance is rendered impossible by strike, fire, flood, acts of God, governmental acts or orders or restrictions, acts of terrorism, war, failure of suppliers, or any other reason where failure to perform is beyond the reasonable control of the non-performing party and not due to its fault or negligence.


11.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of laws provisions thereof that would result in the application of any other law.


11.4 Jurisdiction and Venue. The parties hereby submit and consent to the exclusive jurisdiction of the courts situated within the State of New York and agree that all actions or proceedings relating to this Agreement shall be litigated in such courts. Each of the parties waives any objection which it may have based on improper venue or forum non-convenience to the conduct of any such action or proceeding in such court.


11.5 Non-Disparagement. The parties represent, warrant and covenant that they shall not make, disseminate or publish any oral or written statement, publicly or otherwise, to any third parties in any media that would tend to disparage the other party or its businesses, or otherwise portray the other party in a negative light, except to the extent required by law or as necessary to enforce this Agreement or to prevent or pursue claims relating to the breach of this Agreement.


11.6 Non-Solicitation. Both parties agree that during the term of this Agreement and for a period of one year thereafter, neither party will directly solicit for employment, employ, consult with, or otherwise retain the services of any of each other's employees or subcontractors who are in any manner connected with the services as set forth in this Agreement; provided, that notwithstanding the foregoing, neither party will be precluded from (a) soliciting, contacting, attempting to solicit, or employing any former employee or subcontractor of the other party, or (b) employing or contacting any person as a result of general solicitations, including those posted on internet job boards and in newspaper want-ads, not specifically directed at the other party's employees or subcontractors.


11.7 Assignment. Neither party may assign this Agreement, or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party, except to an affiliate or to an entity that acquires all or substantially all of that party’s assets or business. Any attempted assignment in violation of this section shall be null and void without the written consent of the other party. All covenants, agreements and conditions of this Agreement shall be binding upon and inure to the benefit of both parties, their representatives, and authorized assignees.


11.8 Independent Contractors. Neither party will not be considered the other party’s agent or employee for any purpose, or have the right or authority to undertake or otherwise create any obligation, liability, make any representation, warranty, or agreement (express or implied) on the other party’s behalf or to bind the other party in any manner, except as expressly authorized in this Agreement. Each party shall perform its obligations and exercise its rights under this Agreement as an independent contractor of the other party. Unless expressly stated, nothing herein shall be deemed to constitute the parties as partners, joint venturers, or principal and agent.


11.9 Waiver; Severability. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. In the event that any provision of this Agreement shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.


11.10 Entire Agreement; Modifications. This Agreement represents the entire understanding between the parties with respect to the subject matter hereof to the exclusion of all other terms and conditions, and no changes, additions, modifications or waivers to this Agreement will be effective unless in writing and signed by both parties.


11.11 Headings. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement.


11.12 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute but one and the same instrument.