Valued Partner Network Terms

1. Definitions

  1. “Designated Prospect” means a prospect as set forth in the Partner Referral Agreement.  The list of Designated Prospects in the Partner Referral Agreement may be modified by mutual written agreement of both parties.
  2. “Decision Maker” means an employee or duly authorized representative of a Designated Prospect, as applicable, who is empowered to negotiate on such Designated Prospect’s behalf relating to the execution of a Customer Agreement.
  3. “Customer Agreement” means an agreement between Enter and a Designated Prospect pursuant to which Enter will provide services.

2. Appointment of Finder

Enter hereby authorizes Finder to refer Designated Prospects to Enter pursuant to the terms of this Agreement and the Partner Referral Agreement.

3. Services and Introductions to Designated Prospects. 

During the term of this Agreement, Finder agrees to use diligent efforts to solicit, develop and introduce Enter to Designated Prospects who wish to use Enter’s services.  Except as expressly set forth in this Agreement, Enter shall have no obligation to pay any finder’s fees or other compensation to Finder for any prospect which has not been designated by Enter as a Designated Prospect in the Partner Referral Agreement (“Designated Prospects”).  A Designated Prospect shall cease to be a Designated Prospect for all purposes hereof, and shall no longer be deemed a Designated Prospect following sixty (60) days from the Date of First Introduction unless (i) such Designated Prospect is in active negotiations with Enter regarding an Customer Agreement at the end of such sixty (60) day period and (ii) such Designated Prospect has executed a Customer Agreement within ninety (90) days from the Effective Date, in which case, Enter shall pay to Finder a finder’s fee (“Finder’s Fee”) as designated in the Partner Referral Agreement hereto.  

4. Restriction

Finder shall not make any representations or warranties regarding Enter.  Finder agrees to indemnify, defend and hold harmless Enter from any and all claims arising from any representations or warranties made by Finder regarding Enter.

5. Customer Agreements 

All Customer Agreements and the negotiation thereof shall be solely between Enter and the Designated Prospects.  Nothing contained in this Agreement or to be inferred herefrom shall be deemed to impose upon Enter any obligation to enter into any Customer Agreement.

6. Independent Contractor

Finder is not an employee of Enter for any purpose.  Finder understands and agrees that Finder’s relationship to Enter is one of an independent contractor.  As such, Finder agrees that Finder is not an agent of Enter and is not authorized to make any representation, contract, or commitment on behalf of Enter unless specifically requested and authorized in writing to do so by Enter.  Enter agrees that it is not an agent of Finder and is not authorized to make any representation, contract, or commitment on behalf of Finder unless specifically requested and authorized in writing to do so by Finder.

7. Notice of Agreement and Payments

Within thirty (30) days after the end of the month in which any Designated Prospect executes a Customer Agreement, Enter shall notify Finder of such execution, and will provide the name of the Designated Prospect and the effective date of the applicable Customer Agreement.  Finder agrees to keep such information confidential and agrees not to disclose it to any third party.  

8. Disclaimer

ENTER PROVIDES ALL INFORMATION TO FINDER HEREUNDER “AS IS.”  ENTER MAKES NO WARRANTIES WITH RESPECT TO THE ACCURACY OF ANY INFORMATION PROVIDED BY ENTER TO FINDER, EXPRESS OR IMPLIED, AND ENTER EXPRESSLY DISCLAIMS ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

9. Limitation of Liability

ENTER SHALL HAVE NO LIABILITY TO FINDER, BY REASON OF THE TERMINATION OF THIS AGREEMENT OR OTHERWISE, FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, SUCH AS COMPENSATION FOR LOSS OF PRESENT OR PROSPECTIVE PROFITS OR REVENUES OR LOSS OF ACTUAL OR ANTICIPATED FEES, WHETHER OR NOT ENTER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

10. Term and Termination

The initial term of this Agreement is governed by the Partner Referral Agreement. Either party may also terminate this Agreement for the other party’s material breach of this Agreement if such breach has not been cured within ten (10) days of the date of the non-breaching party’s written notice of such breach.  Any termination of this Agreement shall not, however, terminate:  (i) Finder’s obligation to keep the information disclosed under the terms of Section 8 in confidence; (ii) The nondisclosure and nonuse of Confidential Information obligation of both parties in accordance with Section 12; or (iii) The provisions of Section 14.

1. The terms of this Agreement are confidential and proprietary information of both parties and any other information that one party provides to the other party in connection with this Agreement during the term of this Agreement that the other party would consider confidential information shall be confidential information (all of the foregoing collectively are referred to as “Confidential Information”) of the disclosing party (the “Disclosing Party”).  Neither party (the “Receiving Party”) will disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (a) to those employees, representatives, or contractors of the Receiving Party who require access to the Confidential Information to perform under this Agreement and who are bound by written agreement not to disclose third-party confidential or proprietary information disclosed to such party, or (b) as such disclosure may be required by law or governmental regulation, subject to the Receiving Party providing to the Disclosing Party written notice to allow the Disclosing Party to seek a protective order or otherwise prevent the disclosure.  Nothing in this Agreement will prohibit or limit either party’s use of information (a) previously known to it without obligation of confidence, (b) independently developed by or for it without use of or access to the other party’s Confidential Information, (c) acquired by it from a third party which is not under an obligation of confidence with respect to such information, or (d) which is or becomes publicly available through no breach of this Agreement.  Each party acknowledges that damages for improper disclosure of Confidential Information may be irreparable; therefore, notwithstanding any terms to the contrary in this Agreement, the injured party is entitled to seek equitable relief, including temporary restraining order(s) or preliminary or permanent injunction, in addition to all other remedies, for any violation or threatened violation of this Section 12.  Within five (5) days after a Disclosing Party’s request, the Receiving Party shall return or destroy the Disclosing Party’s Confidential Information. 

11. General Provisions

This Agreement may not be assigned by either party (by merger, operation of law or otherwise) except with the express prior written consent of the other party, which consent shall not be unreasonably withheld.  The failure of either party to enforce at any time or for any period any of the provisions of this Agreement will not be construed to be a waiver of those provisions or of the right of that party thereafter to enforce each and every provision hereof.  All notices which a party to this Agreement may be required or may wish to give may be given by addressing them to the other party at the addresses first set forth above (or at such other addresses as may be designated by written notice given in the manner designated herein) by:  (i) personal delivery; (ii) commercial overnight courier; (iii) confirmed email; or (iv) certified or registered mail.  If so mailed or otherwise delivered, such notices will be deemed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery.  If any provision hereof is found invalid or unenforceable, that part shall be amended to achieve as nearly as possible the same effect as the original provision and the remainder of this Agreement shall remain in full force and effect.  This Agreement shall be construed in accordance with the laws of the State of California, without regard to that body of law controlling conflicts of law.  The parties hereby submit to the jurisdiction of, and waive any venue objections against, the courts in the State of California, San Francisco County, in any litigation arising out of this Agreement.  Except for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary or permanent injunction, or other equitable relief as set forth in Section 12, any dispute between Enter and Finder under this Agreement involving its interpretation or the obligations of a party hereto, shall be determined by binding arbitration in accordance with the commercial arbitration rules of Judicial Arbitration and Mediation Services, in the County of San Francisco, State of California (“JAMS”).  A single arbitrator shall be selected according to JAMS rules within thirty (30) days of submission of the dispute to JAMS.  The arbitrators shall have the authority to permit discovery, to the extent deemed appropriate by the arbitrators, upon request of a party. The arbitrators shall have no power or authority to add to or detract from the agreements of the parties.  The cost of the arbitration shall be borne equally pending the arbitrator’s award.  The arbitrator shall have the authority to grant any temporary, preliminary, or permanent injunctive or other equitable relief in a form substantially similar to that, that would otherwise be granted by a court.  The arbitrators shall have no authority to award punitive or consequential damages.  The resulting arbitration award may be enforced by all lawful remedies, including without limitation injunctive or other equitable relief in any court of competent jurisdiction.  The Superior Court of the County of San Francisco, State of California, and the United States District Court for the Northern District of California are courts of competent jurisdiction. The parties agree to submit to the jurisdiction of those courts for all purposes concerning any arbitration.  This Agreement may be executed in two counterparts, each of which will be deemed an original but both of which will constitute one and the same agreement.  This Agreement sets forth the entire understanding and agreement of the parties as to the subject matter hereof and all prior or collateral proposals, negotiations, and representations are merged into and superseded by this Agreement.  It may not be changed orally but only by a writing signed by duly authorized representatives of each party.