Partner Stack Referral Partner Agreement

This Software Partnering Agreement (“Agreement”) is entered into by and between Fluence Technologies Inc., having a principal place of business at 47 Colborne St., Suite 201, Toronto, Ontario M5E 1P8 (hereinafter referred as “Fluence”) and registering person and or company (hereinafter referred to as “Referral Partner”).

WHEREAS, Fluence develops, markets and supports Fluence Software (as defined herein) and also provides consulting services; 

WHEREAS, Referral Partner possesses a professional network, an existing customer base and/or a new prospect base and possesses the requisite knowledge and expertise in the positioning and marketing of the Fluence Software;

WHEREAS, Referral Partner desires to position and market the Fluence Software in the Territory, as defined in this Agreement;

WHEREAS, Fluence is willing to grant to Referral Partner the right to position and market the Fluence Software in the Territory on a non-exclusive basis in accordance with the terms and conditions of this Agreement; and

WHEREAS, Fluence and Referral Partner (each a “Party” or collectively, “Parties”) desire to set forth herein the terms and conditions of their agreements and understandings.

NOW, THEREFORE, in consideration of the foregoing, of the mutual promises hereinafter set forth and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:

1. DEFINITIONS

1. “Affiliate” means any entity, whether incorporated or not, which presently or in the future, is directly or indirectly controlled by Referral Partner, by virtue of a controlling interest of at least 50% of the voting rights or the capital or is under common control with Referral Partner. For purposes of the foregoing provision, “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies, whether through the ownership of voting securities, by contract or otherwise. 
2. “Confidential Information” means all business and technical information disclosed by one Party to the other in connection with this Agreement which is either marked or designated as being confidential, or should reasonably be understood as confidential having regard to its nature or the circumstances in which it was disclosed.  Without limiting the generality of the foregoing, Confidential Information shall include each Party’s data and the details of such Party’s proprietary software and operations. 
3. ”Documentation” means all End User and developer documentation supplied by Fluence for the Fluence Software, including subsequent revisions and updates thereto.
4. “Effective Date” means the date on which this Agreement has been signed by Fluence and Referral Partner.
5. “End User” means a Referral Partner or Affiliate customer, or customer of a Referral Partner channels distribution partner or reseller, or a company that Referral Partner refers to Fluence that enters into a license agreement for use of Fluence Software as resold by Referral Partner, a Referral Partner channels distribution partner or reseller, or an Affiliate pursuant to the terms of this Agreement.
6. “End User Agreement” has the meaning set forth in 3.1(b).
7. “Hosting Services” means the provision for Hosting Services to be provided by Fluence to Referral Partner and/or its End Users pursuant to the terms of this Agreement for the purpose of hosting use of the Fluence Software by Referral Partner and/or its End Users.
8. “Intellectual Property Rights” means patents, trade or service marks, registered designs or applications for any of the foregoing, copyright, design rights, database right, trade secrets, and any other industrial or intellectual property right.
9. “Referral Partner Products” means the software products or other services or solutions independently owned, developed or held under license and legal authority by Referral Partner, whether sold with Fluence Software, integrated with, interfacing with, or provided via an adaptor to Fluence Software, or wholly independent of Fluence Software, including Referral Partner’s Products existing as of the Effective Date or developed or introduced at any time thereafter.
10. “Fluence Software” means the software described in Exhibit A, developed by Fluence or by any 3^rd party which Fluence is authorized to license, re-license or otherwise grant rights to Referral Partner as described in Section 11.1, together with any updates, upgrades or successors thereto regardless of the product name used.
11. “3^rd Party Software” means any 3^rd party software by which Fluence is authorized to license, re-license or otherwise grant rights to Referral Partner as described in Section 11.1, together with any updates, upgrades or successors thereto regardless of the product name used.
12. “Territory” means the geographic areas indicated in Appendix A.
13. “ARR” means the annual recurring revenue payable to Fluence by End Users for use of the Fluence Hosting Services only, excluding any fees paid or received by 3^rd Party Software parties. For greater clarity, ARR is not cumulative, and is the amount paid by any applicable End User per year in respect of the Fluence Hosting Services and is net new ARR (excluding fees paid for annual maintenance and support and excluding any ARR that was previously paid to Referral Partner or Fluence prior to the Effective Date).
14. “Referral” in the context of this Agreement, to “refer” means to identify and refer a prospective End User in the Territory to Fluence. Fluence will review and approve such referrals at their sole discretion and the Referral Partner will have no responsibilities in the sales cycle after the registration is approved. A valid referral lead must contain an individual's valid company contact information, contact name, company email, company phone, personal contact information will not be accepted. Fluence has the sole discretion to decline any submission that does not meet this criteria.
15. “Closed / Won Deal” in the context of this Agreement, means any previously approved “Referral” has entered into a purchase or licensing agreement with Fluence for a minimum of a one year (1) term.
16. “Eligible” in the context of this agreement a referral partner is not eligible to receive commissions if they are anyone of the following.   Employees or Family Members of Fluence or a subsidiary of Fluence, Employees or Family Members of any existing partner of Fluence.

2. APPOINTMENT

2.1 Fluence hereby appoints Referral Partner, and Referral Partner hereby accepts appointment, as Fluence’s non-exclusive partner to identify and refer prospective End Users of the Fluence Software in the Territory during the term of this Agreement.

3.  GRANT OF RIGHTS

3.1 Fluence hereby grants to Referral Partner and Referral Partner’s Affiliates an, irrevocable, paid up, royalty-free, worldwide, nonexclusive license to:  

(a) Promote, market, and refer either directly or through its Affiliates and third party resellers and channels distribution partners, the Fluence Software, (in the form of access to Fluence’s production cloud software environment) under the terms and conditions of Referral Partner’s standard license agreement (the “End User Agreement”) for perpetual and/or rental or subscription terms, subject to the minimum license requirements set forth in Exhibit B; 

(b)  use Fluence’s trade name and those trademarks of Fluence, at Referral Partner’s sole option, for the purposes of promoting or marketing the Fluence Software;

3.2 Fluence acknowledges that except for the licenses and rights granted herein, Fluence retains all of its right, title and interest in the Fluence Software, and Referral Partner and/or its suppliers retain all right, title and interest to Referral Partner Products.  

3.3 Fluence acknowledges that Referral Partner will have no obligation to sell the Fluence Software.

3.4 The rights granted hereunder to Referral Partner may also be exercised by any Affiliate of Referral Partner, provided that each such Party agrees to comply with the terms of this Agreement as if such Affiliate has originally signed this Agreement.  

4. LEAD REGISTRATION

4.1 Referral Partner shall register its End User and prospect leads with the Fluence utilizing a registration form available to the vendor via PartnerStack.com.  All registrations are valid for 45 days, after which the registration will be auto-renewed for an additional 45 days provided Fluence and/or the Referral Partner has engaged with the prospect and has an active next step.   For clarity a prospect who would like to be contacted again in 3 months to continue the evaluation is a valid next step.

4.2 Once the lead registration form is completed and submitted by Referral Partner, Fluence will reply by accepting the lead or rejecting the lead, for greater clarity a lead is not approved unless acceptance is received in writing and via communication either email or PartnerStack.com. Fluence in its sole discretion can approve, reject or remove a lead registration submitted by a Referral Partner. For clarity a reason for rejecting the lead would include the fact that the Fluence or another Fluence Partner is already engaged in on-going sales activities with the prospective End User, or the Referral Partner has not engaged with the lead and has no next steps as identified on the lead registration form submitted by Referral Partner.

5. MARKETING, TRAINING, SALES EFFORTS AND ACTIVITIES, AND REFERRALS

5.1 Fluence agrees to provide Referral Partner with Fluence sales training for no additional fee from time-to-time during the Term of this Agreement, at mutually agreed upon times and locations and/or means (i.e. via teleconference, video conference, or meeting via internet).  Fluence also agrees to provide Referral Partner with Fluence software training for up to 6 individuals annually for no additional fee during the Term of this Agreement, at mutually agreed upon times and locations and/or means (i.e. via teleconference, video conference, or meeting via internet). Software training for individuals beyond the cap of 6, will be provided at a discount of 15% off the then current list price for Fluence software training.

5.2 Fluence agrees to participate in sales discussions with End Users and prospective End Users as may be reasonably requested by Referral Partner from time-to-time.  Fluence shall appoint a dedicated sales executive for each prospect registered pursuant to Section 4 hereinabove to ensure that Fluence engages all additional resources that may be necessary throughout the sales process, which may include but is not limited to engaging with product specialists, maintenance and support managers and implementation resources. Fluence further agrees to provide reasonable assistance in Referral Partner’s development of support material and supporting sales tools with respect to the Fluence Software, such as recorded product demonstrations or product demonstrations and scripts, PowerPoint sales presentations, and marketing and sales literature. Referral Partner and Fluence also agree to cooperate with respect to marketing events (such as webinars and conferences) in order to promote the Fluence Software to Referral Partner End Users and prospects, as Referral Partner shall determinate in its sole discretion periodically throughout the Term of this Agreement.  Fluence agrees that its sales personnel, Fluence Software implementation personnel, and Fluence Software engineering personnel will promptly support Referral Partner in its sales efforts relating to the Fluence Software in an overlay fashion as Referral Partner may reasonably require. 

5.3 Fluence and Referral Partner each agree to appoint a single point of contact for management of the relationship contemplated by the terms of this Agreement upon the Effective Date of this Agreement, which the Parties may update from time-to-time upon written notice to the other Party.  The Parties’ respective points of contact shall have discussions on a bi-weekly basis, or otherwise as the Parties may mutually agree, to review sales efforts, support issues, pipeline information with respect to the Fluence Software, or any other matters as may be relevant to this relationship from time to time during the Term of this Agreement.
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6. REPORTING, PRICING AND PAYMENT TERMS

6.1 Referral Partner shall have access to a pipeline report of all Fluence Software referral activity via PartnerStack.com.

6.2 Referral Partner will receive payment for the applicable commissions due for each successful registration, challenge, or sale of client via PartnerStack.com within thirty (30) days of a transaction or renewal closing date. Fluence will remit all commission payments owed to Referral Partner within thirty (30) calendar days of Fluence’s receipt of payment from the End User(s) to PartnerStack.com, and Referral Partner will receive payment from PartnerStack.com.   For greater clarity Fluence will have no obligation to issue payment directly to Referral Partner.

7.  CONFIDENTIALITY

7.1 All Confidential Information of one Party (“Disclosing Party”) in the possession of the other (“Receiving Party”), shall be held in confidence, and the Receiving Party shall take all steps reasonably necessary to preserve the confidentiality thereof.  One Party’s Confidential Information shall not be used or disclosed by the other Party for any purpose except as necessary to implement or perform this Agreement, or except as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order.  The Receiving Party shall limit its use of and access to the Disclosing Party’s Confidential Information to only those of its employees, consultants, and agents whose responsibilities require such use or access.  The Receiving Party shall advise all such employees, consultants, and agents before they receive access to or possession of any of the Disclosing Party’s Confidential Information, of the confidential nature of the Confidential Information and require them to abide by the terms of this Agreement.  The Receiving Party shall be liable for any breach of this Agreement by any of its employees, consultant, agents or third party who obtains access to or possession of any of the Disclosing Party’s Confidential Information from or through the Receiving Party.  The foregoing duty of confidentiality will not apply to any portion of Confidential Information that:  (a) is or becomes generally known or available by publication, commercial use or otherwise through no fault of either Party; (b) is known and can be evidenced by documentation or other tangible form by the Receiving Party at the time of disclosure and is not subject to restriction; (c) is independently developed by the Receiving Party without use of the Confidential Information ; (d) is lawfully obtained from a third party without obligations of confidentiality; or (e) is released for publication by the disclosing Party in writing.  

7.2 Except as expressly set forth herein, the Parties agree not to disclose the terms and conditions of this Agreement to any third parties, including (without limitation) End Users as defined under this Agreement.

7.3 Notwithstanding anything else herein, the Parties may disclose information that is covered by an obligation of confidentiality under this Agreement (a) to their own legal and/or financial advisers who are bound by a written confidentiality agreement, for the purpose of obtaining legal or financial advice relating to this Agreement, or (b) as required by law in a legal proceeding.  In the event that a Party is required to disclose this Agreement in a legal proceeding, such Party will take reasonable steps to obtain protective treatment of the information to maintain its confidentiality and will give the other Party prior written notice of the required disclosure in sufficient time, to the extent possible, to enable the other Party to seek protective treatment.  

8.  AUDIT RIGHTS

8.1 No more than once per twelve (12) month period during the Term of this Agreement and once during the twelve (12) month period following termination of this Agreement, each Party shall have the right to request the other Party to provide written certification from an officer or authorized representative of the non-requesting Party that it is in compliance with the provisions of this Agreement.  In the event that either Party reasonably believes that the other Party is not in compliance with this Agreement, then an executive officer or authorized representative of such Party shall provide written notice to an officer or authorized representative of the other Party.  The Parties’ executive officers or authorized representatives shall have thirty (30) days to agree on a resolution to the area(s) of noncompliance.  In the event that the executive officers or authorized representatives cannot agree within such time period, then each Party has the right to audit the other Party.  Any such audit may only be performed by a mutually acceptable firm of independent certified accountants (to which the non-requesting Party shall not unreasonably object), subject to the following: (i) the audit shall only be performed under written confidentiality obligations, (ii) the audit shall only be performed after providing at least fourteen (14) business days prior written notice, unless the audited Party agrees otherwise in writing, (iii) the audit shall only be performed during the audited Party’s regular business hours, (iv) the audit shall only be conducted in a manner so as not to interfere with the audited Party’s normal business operations, (v) the audit shall be limited to an examination of the audited Party ’s relevant records and accounts that may contain information regarding the audited Party’s exercise of its rights and the performance of its obligations under this Agreement, and (vi) the audit is paid for entirely by the auditing Party.  All information revealed during any such audit shall be kept in confidence and used solely for the purpose of verifying the audited Party’s compliance with this Agreement.  The auditing Party agrees that the audited Party may remove the names and any other identifying information from the records reviewed by the auditors as necessary to comply with any confidentiality obligations.  

9. WARRANTIES, DISCLAIMERS, AND INDEMNITY 

9.1 Warranties.  Fluence warrants and represents to Referral Partner that (i) it developed and owns (or otherwise has the right to license without restriction) the Fluence Software provided by Fluence to Referral Partner pursuant to this Agreement; (ii) it has the right to license the Fluence Software and grant the associated rights to Referral Partner in the Fluence Software and Services in accordance with this Agreement, (iii) the Fluence Software and/or Services does not infringe any third party Intellectual Property Rights; (iv) the Fluence Software will perform substantially in accordance with its Documentation, (v) Fluence will perform any and all support services hereunder in a prompt and professional manner, (vi) all Fluence personnel who will be assigned to perform consulting, maintenance or training services onsite or remotely to Referral Partner or to any End User will have had a clear criminal background check conducted not more than twelve months prior to the commencement of any such Services; (vii) the Fluence Software (including any future error corrections and Minor and Major Upgrades) have or shall be thoroughly checked by Fluence using high-quality and up-to-date virus checking software, and shall not be provided to Referral Partner until any detected viruses have been completely eradicated, (viii) the Fluence Software does not contain any open-source software subject to copyleft or other provisions of a GNU Library General Public License (GPL) or Lesser General Public License (LGPL), current or prior versions, or other limitation on open source code, (ix) the Fluence Software does not include any third-party software or any code designed to limit or prevent Referral Partner’s or its End Users’ use of the Fluence Software in accordance with the terms of this Agreement; (x)  the Fluence Software does not have any asset protection devices or other computer code to: a) disrupt, disable, harm or otherwise impede in any material respect the operation of Referral Partner’s or Referral Partner’s End Users’ product or systems  (sometimes referred to as “viruses” or “worms”), b) that would disable any of Referral Partner’s or End Users’ products or systems or impair in any material respect their operation based on the elapsing of a period of time or the advancement to a particular date or other numeral (sometimes referred to as “time bombs”, “time locks” or “drop dead” devices),  c) that would permit Fluence to access to any of Referral Partner’s or Referral Partner’s End Users’ product or systems (sometimes referred to as “traps”, “access codes” or “trap door” devices) other than remote access for maintenance and support as authorized and permitted by Referral Partner and/or such End User, and (xi) to the extent that Hosting Services are provided by Fluence to Referral Partner and/or its End Users pursuant to this Agreement, then such Hosting Services shall be provided in a facility that is at all times during the term of this Agreement SSAE16 (or industry-better equivalent) compliant.  

9.2 If there is any such defect or non-conformity of the Fluence Software, Fluence shall correct or replace any defective Fluence Software within 30 days following receipt of written notice thereof from Referral Partner.  If Fluence is unable to correct or replace the defective Fluence Software to Referral Partner’s reasonable satisfaction within such time frame and upon Referral Partner’s election, Fluence shall refund to Referral Partner the prorated amounts paid to Fluence by Referral Partner for each such defective Fluence Software for the remainder of the then current term.  This Section does not limit Fluence’s maintenance obligations as set forth in this Agreement.

9.3 If there is non-conformity with the warranty for any Services provided by Fluence in connection with this Agreement, Fluence shall re-perform such non-conforming Services within thirty (30) days following receipt of written notice thereof from Referral Partner.  If Fluence is unable to re-perform the non-conforming Services to correct the non-conformity within such time frame, and upon Referral Partner’s election, Fluence shall refund to Referral Partner the amounts paid to Fluence by Referral Partner for the non-conforming Services provided that as to maintenance and support services, Fluence shall refund the pro-rata portion of the annual fee paid for such maintenance and support services allocable to the balance of that annual maintenance period remaining after such election by Referral Partner.

9.4 EXCEPT FOR THE FOREGOING WARRANTIES AND CONDITIONS AND ANY OTHER WARRANTY AND CONDITION SET FORTH IN THIS AGREEMENT, FLUENCE GRANTS NO OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER IMPOSED BY CONTRACT, STATUTE, COURSE OF DEALING, CUSTOMER USAGE OR OTHERWISE.  

9.5 Fluence will, at its expense and at Referral Partner’s request, defend any claim or action brought against Referral Partner, a Referral Partner Affiliate, a Referral Partner channels distribution partner or reseller, an End User, or their respective employees, officers, directors, and agents (each an “Indemnitee”) to the extent such claim arises out of the breach of any of the obligations set forth in this Agreement, including warranties set forth in Section 9, or which alleges facts that, if true, would represent a breach of the foregoing warranties, by Fluence or, its employees, officers, directors, agents or representatives, including for any fault, omission and/or negligence, and will indemnify and hold the Indemnitee harmless from and against any costs, damages and fees reasonably incurred by the Indemnitee, including but not limited to fees and costs for attorneys and other professionals, that are attributable to such claim or action; provided that:  (i) the Indemnitee gives Fluence reasonably prompt notice in writing of any such claim or action and permits Fluence, through counsel of its choice, to answer the charge and defend such claim or action (provided the Indemnitee may engage counsel of its own choosing to monitor the proceedings and/or negotiations at the Indemnitee’s sole expense); (ii) the Indemnitee provides Fluence information, assistance and authority, at Fluence’s expense, to enable Fluence to defend such claim or action; and (iii) Fluence will not be responsible for any settlement made by the Indemnitee without Fluence’s written permission, which shall not be unreasonably withheld or delayed.  Fluence may not settle any claim or action on the Indemnitee’s behalf without the Indemnitee’s written permission, and in the event that the Indemnitee and Fluence agree to settle a claim or action, Fluence agrees not to disclose the settlement or to permit the Party claiming infringement to disclose the settlement without first obtaining the Indemnitee’s written permission.  In no event shall Fluence settle any such third party claim by making an agreement which would cause Referral Partner to lose any rights under this Agreement without Referral Partner’s prior written consent, which shall not be unreasonably withheld or delayed.

9.6  In addition to the indemnity set forth in Section 9.5, if such claim or action threatens Referral Partner’s or Referral Partner’s channels distribution partners’ or resellers’ continued use, positioning and marketing of the Fluence Software, Fluence shall, at no additional cost to Referral Partner, (i) obtain the right for Referral Partner and its End Users to continue the use, position and market (in the case of Referral Partner) the Fluence Software and Documentation, (ii) repair or modify Fluence Software and Documentation so that they are both non-infringing and functionality and operationally equivalent to the Fluence Software and Documentation, or (iii) provide functionally equivalent replacement products.  If none of the foregoing is possible, then Referral Partner shall have the immediate right to terminate the Agreement.  

10.  LIMITATION OF LIABILITY

10.1 EXCEPT FOR A BREACH OF FLUENCE’S OBLIGATIONS SET FORTH IN SECTION 7 AND SECTION 9, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE.  EXCEPT FOR A BREACH OF FLUENCE’S OBLIGATIONS IN SECTION 7 AND SECTION 9, IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE GREATER OF: (I) FOUR (4) TIMES THE AMOUNT PAID BY A REFERRAL PARTNER END USER TO FLUENCE FOR THE LICENSE TO THE APPLICABLE FLUENCE SOFTWARE AND SERVICES GIVING RISE TO SUCH DAMAGES; OR (II) THE AGGREGATE AMOUNT OF THE FEES PAID TO FLUENCE BY A REFERRAL PARTNER END USER HEREUNDER DURING THE TERM OF THE AGREEMENT, INCLUDING ANY EXTENSION TERMS THEREOF.

11.  TERM AND TERMINATION

11.1 Term.  This Agreement is effective as of the Effective Date and will continue for an initial term of 1 year (the “Initial Term”), and thereafter will renew annually for a 1-year renewal term (the “Renewal Term”) on the anniversary of the expiration of the Initial Term and will continue until terminated as provided herein or by mutual written consent of the Parties (the “Term”).  Either Party may terminate this Agreement at the anniversary of the next Renewal Term by providing the other at least 30 days prior written notice of its intent to terminate at the conclusion of the then current term, or otherwise during any Initial Term or Renewal Term as the Parties may mutually agree in writing signed by each Party.   

11.2 Termination for Breach.  Either Party will have the right to terminate this Agreement immediately upon written notice at any time if the other Party is in material breach of any warranty, term, condition or covenant of this Agreement and fails to cure that breach within thirty (30) days after written notice of that breach and of the first Party’s intention to terminate.  

11.3 Effect of Termination.  Any terms and conditions that by their nature or otherwise reasonably should survive a cancellation or termination of this Agreement shall be deemed to survive. Such terms and conditions include but are not limited to the following Sections: 1 (definitions), 3.2 (ownership rights), 3.3 (no obligation to distribute), 7 (confidentiality), 8 (audit rights), 9 (warranties and indemnification), 10 (limitation of liability), 11.3 (effect of termination), 12 (notices), and 13 (General).  For a period of one hundred twenty (120) days (the “Wind-Up Period”) after the expiration of this Agreement or termination of this Agreement, other than for a termination of this Agreement by Fluence for breach, Referral Partner may continue, subject to the terms and conditions of this Agreement, to position and market the Fluence Software to the then-current registered prospects as of the date of such termination or expiration and to enter into agreements for the Fluence Software and Services with those persons or entities.  Referral Partner shall notify Fluence within forty-five (45) days after expiration or termination of this Agreement if it wishes to utilize the Wind-Up Period as provided herein.  Additionally, Fluence agrees to continue to provide Levels 1, 2 and 3 Support for all such End Users who have a valid term for software services for the Fluence Software as of the expiration or termination of the Agreement or during any applicable Wind-Up Period for the remainder of each End User’s applicable term for no additional fee to Referral Partner or its End Users.  Termination will not relieve either Party from any liability arising from any breach of this Agreement.  Neither Party will be liable to the other Party for damages of any sort solely as a result of terminating this Agreement in accordance with its terms. Termination of this Agreement will be without prejudice to any other right or remedy of either Party.  Upon termination or expiration of this Agreement, Fluence shall immediately return to Referral Partner all Referral Partner Confidential Information in Fluence’s possession or under its control, or with Referral Partner's prior written consent, Fluence shall destroy such items and, in either case, Fluence shall promptly certify in writing to Referral Partner that such action has been taken.  Return of any Referral Partner Confidential Information and/or End User information or data that is hosted by Fluence in connection with Hosting Services shall be returned to the respective owner of such information.  The Parties hereto hereby further agree to collaborate in good faith to establish clear communication to the End Users as the Parties shall mutually agree upon expiration or termination of this Agreement, however occurring.  

12.  NOTICES

12.1  All notices required or permitted under this Agreement will be in writing, will reference this Agreement and be sent in one of the following ways:  (i) delivered personally; or (ii) registered or certified first class mail, return receipt requested, postage prepaid; or (iii) commercial overnight carrier specifying next day delivery, with written verification of receipt.  All notices will be sent to the addresses set forth below or to such other address as may be designated by a Party by giving written notice to the other Party pursuant to this Section 8:

Referral Partner:                

Fluence:

As registered via PartnerStack.com
Fluence Contact and Address
47 Colborne St., Suite 201, Toronto, Ontario M5E 1P8

13.  GENERAL

13.1 Relationship of Parties.  The Parties are independent contractors, and not agents, employees or joint ventures of one another, and do not have any authority to bind the other Party by contract or otherwise to any obligation.  Neither Party will represent to the contrary, either expressly, implicitly, by appearance or otherwise. 

13.2 Subcontractors.  Fluence shall remain fully responsible and liable for the performance of any of its Affiliates or subcontractors under this Agreement.

13.3 Force Majeure.  Neither Party shall be liable to the other for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to an event of force majeure.  Events of force majeure are events beyond the control of the Party which occur after the time of signing of this Agreement and which were not reasonably foreseeable at such time and whose effects are not capable of being overcome without unreasonable expense and/or loss of time to the Party concerned, and provided further with respect to Fluence that such event could not have been prevented by Fluence by reasonable precautions or cannot reasonably be circumvented by Fluence through the use of alternate sources, workaround plans or other means (including Fluence meeting its obligations for performing disaster recovery services and implementing the disaster recovery plan) (hereinafter “Force Majeure Event”). In the event of force majeure, Fluence shall be excused from further performance or observance of its obligations so affected for as long as such circumstances prevail and Fluence continues to use its best efforts to recommence performance or observance whenever and to whatever extent possible without delay. If an event of force majeure results in delay or non-performance of a Party for a period of ninety (90) days or longer, then either Party shall have the right to terminate the Agreement and/or the relevant End User Agreement(s) for Levels 1, 2 and 3 Support and/or Hosting Services with immediate effect without liability towards the other Party. 

13.4 Assignment.  Neither Party may assign this Agreement in whole or in part, without the other Party’s prior written consent, such consent not to be unreasonably withheld.  Notwithstanding the foregoing, Referral Partner may assign this Agreement without such consent to its parent corporation, an Affiliate, in the event of a reorganization, merger, acquisition or sale of all or substantially of it business.  Any attempted assignment in violation of the foregoing will be null and void.  This Agreement shall be binding upon and inure to the benefit of the Parties’ permitted successors and assigns.

13.5 Governing Law; Venue.  This Agreement shall be governed by, construed and enforced in accordance with the laws of the Province of Ontario and the federal laws of Canada excluding its choice of law provisions.  With respect to any action, suit or proceeding each Party hereby submits to the sole and exclusive jurisdiction and venue of the federal and state courts located in the Province of Ontario and waives any objection to personal jurisdiction, improper venue or forum non convenience in any such action, suit or proceeding.  With respect to any action, suit or proceeding (a) each Party irrevocably consents to the service of process from any of the aforesaid courts by mailing copies thereof by registered or certified mail, postage prepaid, to such Party at its address designated pursuant to this Agreement, with such service of process to become effective upon receipt; (b) each Party irrevocably waives the right to trial by jury; and (c) the prevailing Party will be entitled to recover its reasonable attorney’s fees (including, if applicable, charges for in-house counsel), court costs and other legal expenses from the other Party.  This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

13.6   Severability.  If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect.

13.7   No Waiver of Rights.  The failure of either Party to enforce any of the provisions of this Agreement, or the failure to require performance by the other part of any of the provisions of this Agreement, shall not be construed to be a present or future waiver of such provisions, nor affect the validity of either Party’s right to enforce such provision in the future.

13.8   Complete Agreement.  This Agreement, including all Exhibits, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreement, written or oral, regarding such subject matter.  No amendment to or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both Parties.

13.9   Digital Acceptance of Terms.  Upon joining the Fluence program via PartnerStack.com the Referral Partner accepts and agrees to all terms of this agreement.

13.10   Superseding Agreement.  This Agreement will not replace or supersede any agreement that has been directly signed with Fluence Technologies and the Partner. 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives.

Exhibit A

Description of licensed software:‍

Fluence Financial Consolidations/CPM Software, XLCubed Software or Sturnus365 (Fluence Disclosure Management)
Territory will be defined as Worldwide
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Currency:  Referral Partner will be paid commissions in the same currency the MSA is transacted and is responsible for all related tax owed or due.  Fluence at its sole discretion has the right to accept or reject a Referral at any time or stage.

Payments and eligible Commission

1. Referral: 

1. For any net new opportunity referred to Fluence by Referral Partner within the Territory, where the prospective customer is verified by Fluence. Fluence will pay Referral Partner a one-time commission fee of One Hundred Dollars ($100).  A Referral is valid for payment if verified by Fluence within Thirty  (30) days of receipt of Referral from Referral Partner.

2. For any net new opportunity verified by Fluence and where the customer attends a demonstration of a Fluence product.  Fluence will pay Referral Partner a one-time commission fee of Three Hundred Dollars ($300).  A Referral is valid for payment if the verified customer attends a demonstration of a Fluence product within Ninety (90) days of receipt of Referral from Referral Partner.

2. Closed / Won Deal: For or any net new opportunity or license expansion referred to Fluence by Referral Partner within the Territory, Fluence will pay Referral Partner a commission fee of Fifteen percent (15%) of the net annual recurring revenue (“ARR”) received by Fluence from the applicable End User for the first year of the End User’s contract.  A Closed / Won Deal is valid for payment if the verified Referral purchases a Fluence product within One (1) Year of receipt of Referral from Referral Partner.