This agreement is between Forecastable, Inc., a Florida corporation (Forecastable), and the party agreeing to these terms (Referring Party), and is effective as of the date of the last signature below.
Referring Party intends to market Forecastable’s online software service (Service) to prospective customers and provide qualified leads for the Service to Forecastable (Leads). For the avoidance of doubt, the Service does not include implementation and setup services
Payment. All Referral Fees (defined below) are payable 30 days after the end of the applicable calendar month, so long as Forecastable received payment in that month for the applicable transaction. Along with any payment, Forecastable will provide reasonable details regarding the Referral Fees paid in that month. Forecastable may determine in its sole discretion whether it wants to enter into a contract with a Lead or not and has no liability to Referring Party if it does not do so.
- Referral Fee means a percentage of the amount paid by a Lead to Forecastable for the Service for the initial committed duration (i.e. not any renewals, upsell, cross-sell or additional capacity purchases) under a contract between the Lead and Forecastable (less any transaction-based fees, costs of the transaction between the Lead and Forecastable, and credits charges and refunds), except for Leads that are Excluded Leads.
- Referral Categories: The first category of referral is “Net New”, which means that the Referring Party made the initial introduction between Forecastable and a lead belonging to a company where Forecastable does not have an open opportunity. The Referral Fee percentage for Net New referrals is 10% of the closed/won booking, less any services. The second category of referral is a “Deal Acceleration” referral. This is a situation whereby Forecastable has an open opportunity with a prospective customer and the Referring Party has a relationship with a person, or multiple people, at the prospective customer that Forecastable is not currently engaged with. If Forecastable feels the relationship(s) will expedite the currently-active opportunity, then Forecastable will accept the introduction(s). All Deal Acceleration referrals must be approved in advance, in writing by Forecastable. The Referral Fee percentage for Deal Acceleration referrals is 5%.
- Excluded Lead means any Lead that:
- is either an existing or known potential customer of Forecastable;
- does not become a customer of the Service within 12 months of the date Forecastable was introduced to such Lead by Referring Party under this agreement;
- is not introduced to Forecastable in conformance with the Forecastable lead referral process (which process will be identified by Forecastable and is subject to change upon electronic notice from Forecastable); or
- that Forecastable identifies or contacts, other than as a result of the Referring Party’s services under this agreement.
- FORECASTABLE MAKES NO WARRANTIES TO REFERRING PARTY.
- CONSUMER LAW NOTICE. SOME STATES MAY NOT ALLOW, SUCH DISCLAIMERS, EXCLUSION OR LIMITATION, SO THE ABOVE DISCLAIMER, EXCLUSION OR LIMITATION MAY NOT APPLY TO REFERRING PARTY.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). Confidential Information includes, without limitation, this agreement, software, product/service technical documentation, pricing information, customer and prospect lists, market projections and analysis, technology roadmaps, data regarding business practices, intellectual property, and other technical information.
- Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and during and after the term of this agreement for a period of three (3) years after the termination of this agreement, it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement. The Recipient may disclose Confidential Information to the extent required by law or court order but will provide Discloser with advance notice to seek a protective order.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without violation of this agreement; (ii) is or was known to the Recipient prior to its receipt from Discloser; (iii) is disclosed to the Recipient by another person not in violation of a confidentiality obligation; or (iv) was independently developed by the Recipient without use or access to the Confidential Information of the Discloser.
- Lead Information. Notwithstanding anything contained in this agreement to the contrary, Forecastable may use all Lead information for any business purpose and such information is considered the Confidential Information of Forecastable.
- Interest. All Leads must have demonstrated an interest in the Service, to be considered as a Lead under this agreement.
- Compliance. Referring Party must use solicitation methods that comply with all applicable laws and do not use any deceptive, misleading, unethical, or improper acts or practices.
- No Agency. Referring Party may not make any representation or promise on behalf of Forecastable, must conduct all business in its own name, and is responsible for its own expenses and costs when performing under this agreement.
TERM AND TERMINATION
- Term. This agreement begins on the effective date and continues from month-to-month until terminated by either party for its convenience.
- Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 15-day notice/cure period, if the breach has not been cured.
- Post-Termination Referral Fee Payments. If a party terminates this agreement for its convenience, then Forecastable will continue to pay Referral Fees for Leads that:
(i) entered into a contract with Forecastable prior to the effective date of termination, and
(ii) paid Forecastable within 6 months after termination only where the Leads were received by Forecastable prior to the effective date of termination,
until the sooner of:
- the time that Referring Party has received the total Referral Fee payments for that Lead (counting the period before and after termination of this agreement, as applicable); or
- the contract (for any reason) between Forecastable and that Lead expires or is terminated.
- Referral Fees Upon Termination. Other than as provided in this section, no Referral Fees will be paid after termination of this agreement.
- Exclusion of Indirect Damages. Forecastable is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.
- Total Limit on Liability. Forecastable’s total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount owed by Forecastable under this agreement within the 12-month period prior to the event that gave rise to the claim with respect to the Lead in dispute.
GOVERNING LAW AND FORUM
This agreement is governed by the laws of the State of Florida (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Seminole County, Florida, and Referring Party submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
- Entire Agreement and Changes. This agreement constitutes the entire agreement between the parties and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Neither party is relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it.
- No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
- Independent Contractors. The parties are independent contractors with respect to each other. No partnership or joint venture is created.
- Notice. Notifications shall be delivered via email to email@example.com.
- Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
- Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
- Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
- Complimentary Not-For-Resale (NFR) Access. As an active Forecastable partner, the referring party will be provided with their own Forecastable subscription at no cost. This subscription will be unrestricted in terms of features and may have an unlimited number of users as long as the users are direct employees of the referring party. To be considered “Active”, the referring party must have either referred business to Forecastable or provably conducted some meaningful form of Forecastable-centric go-to-market effort within the last 12 months (webinar, podcast, etc.). In the event the referring party doesn’t meet these requirements, the referring party will be notified and they will be provided with a 30-day notice to convert to a paying customer or to provide Forecastable with a plan on how the referring party plans on improving their partnership contributions in the near future. If the plan is accepted by Forecastable, then NFR access will remain in place. If not accepted, the referring party must either convert to a paid subscription or simply do nothing and the NFR access will automatically be revoked within 30 days of the non-acceptance of the referring party’s plan.