THIS OCCUPIER REFERRAL AGREEMENT PROVIDES THE TERMS APPLICABLE TO OCCUPIER’S REFERRAL PROGRAM. UPON CLICKING THE “I AGREE” BUTTON BELOW, YOU AGREE THAT UPON NOTIFICATION TO YOU OF OCCUPIER’S ACCEPTANCE OF YOUR APPLICATION FOR PARTICIPATION IN THE OCCUPIER REFERRAL PROGRAM (AS OUTLINED IN SECTION 1), THIS AGREEMENT WILL BE LEGALLY BINDING. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (AS OPPOSED TO ON YOUR OWN PERSONAL BEHALF) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY OR ENTITY, IN WHICH CASE AS HEREINAFTER USED THE TERMS “YOU” AND “YOUR” WILL REFER TO SUCH COMPANY OR ENTITY. CAREFULLY READ THIS AGREEMENT BEFORE CLICKING “I AGREE”.

OCCUPIER REFERRAL PROGRAM AGREEMENT

This Occupier Program Referral Agreement (“Agreement”) is entered into between You and Occupier, Inc. (“Occupier”) headquartered at 175 Greenwich St., 38th Floor, New York, NY 10007 and takes effect as set forth in Section 1 below.

AGREEMENT SUBJECT TO APPROVAL.

This Agreement is effective upon notification in writing (via e-mail) of Occupier’s acceptance of Your application for participation in the Occupier Referral Program (“Approval”). The effective date of this Agreement shall be the date of such Approval notification (“Effective Date”). Occupier may reject or decline to accept Your application for any or no reason at its sole discretion. If Occupier approves Your application, You may refer sales leads to Occupier during the term and in accordance with all terms and conditions of this Agreement, to enable Occupier to solicit orders for Occupier products and services (“Products”).

LIMITATIONS ON ACTIVITIES.

Limitations on Activities. Your activities under this Agreement shall be limited as follows:

You shall conduct all of Your business in Your own name and in accordance with the highest business standards, acting dutifully, in good faith and in compliance with all applicable laws and the terms of this Agreement, and You shall not perform any act which would or might reflect adversely upon the Products or the business, integrity or goodwill of Occupier.

You shall not be, or purport to be, authorized to legally represent Occupier or to conduct negotiations on behalf of Occupier. You shall not have the authority to make any commitments or agreements or incur any liabilities whatsoever on behalf of Occupier or register this Agreement under local registered agency law. Occupier shall not be liable for any acts, omissions to act, contracts, commitments, promises or representations made by You.

You shall not use any trademarks, names or other identifiers owned or used by Occupier (“Trademarks”), except that You may refer to Occupier and the Products in conversations and written correspondence with potential customers in the same manner as Occupier does in its own marketing materials and website. Any use of the Occupier Trademarks shall be subject to Occupier’s right to review and approve or reject in advance of each proposed use of the Occupier Trademark, and shall conform with any trademark usage guidelines, policies, or requirements provided, from time to time, by Occupier. Occupier is the sole and exclusive owner of the Occupier Trademarks. Upon termination or expiration of this Agreement, You shall immediately cease use of any and all Occupier Trademarks.

You shall not make any representations or other statements about Products, prices or business practices, except that You shall forward to potential customers (i) unmodified marketing materials provided by Occupier and (ii) references to Occupier’s standard conditions of sale, as published by Occupier on its website or otherwise.

No License. No license is granted under this Agreement to use or access any Products, any of Occupier’s proprietary technologies embodied therein, or any data, information or other content provided thereby.

IP Rights. All rights, title and interest in and to the Products, Trademarks and other Occupier intellectual property (including without limitation, all IP Rights (as defined in Section 11) therein and all modifications, extensions, customizations, scripts or other derivative works of such Intellectual Property provided or developed by Occupier) are owned exclusively by Occupier or its licensors. Except for the rights and grant of limited use of the Trademarks expressly granted in this Agreement, the rights granted to You do not convey any rights in the Products, Trademarks or other Occupier intellectual property, express or implied, or ownership therein. Any rights not expressly granted herein by Occupier are reserved by Occupier. You shall immediately advise Occupier if You have knowledge of any potential infringement of any of Occupier’s patents, trademarks, copyrights or other IP Rights.

Nonexclusive Referral Agreement. Each party acknowledges that this Agreement does not create an exclusive agreement between the parties. Each party shall have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties. Notwithstanding the foregoing, once You establish a Commissionable Lead (as defined in Section 4) with Occupier, You will not refer such Commissionable Lead to a competitor of Occupier which offers a product or service that is similar or competing with any current or publicly announced Occupier offering.

REFERRALS.

Submission of Leads. You shall identify, register, and provide relevant commercial conditions relating to an opportunity at a proposed lead (“Proposed Lead”) in a lead form (“Lead Form”), which is a standard form generated by Occupier (and available online via a link provided to You by Occupier), or via some other method at Occupier’s option, such as email. Proposed Leads cannot be located in an Excluded Country (as defined in Section 11). At Occupier’s request in connection with the Proposed Lead, You agree to (a) supply any additional information reasonably requested by Occupier, (b) discuss each completed Lead Form in reasonable detail with Occupier, and (c) assist Occupier in making contact with the Proposed Lead by taking reasonable measures to facilitate an introduction, meeting, conference call or other means of communication with the Proposed Lead. 

Acceptance of Leads. Within a reasonable period of time following Your submission of a Lead Form, Occupier shall review the Lead Form to determine whether to accept the Proposed Lead as commissionable under Section 4.1 below, or reject the Proposed Lead and, if it accepts the Proposed Lead, will provide You with a written (which may without limitation be by e-mail) notification of its acceptance (“Referral Confirmation”). Proposed Leads will not be considered accepted unless and until Occupier provides its Referral Confirmation. Occupier reserves the right to change its acceptance or rejection of a Lead Form at any time if it learns of new or different information relating to the Proposed Lead than what You submitted in the Lead Form and for subsequent noncompliance with the terms of this Agreement. Occupier will be under no obligation to accept any Lead Form and may reject or decline to accept a Lead Form for any or no reason at its sole discretion, including, without limitation, because:

the Proposed Lead was an existing customer of Occupier at the time of submission of the Lead Form;

Occupier was already involved in preliminary or advanced discussions with the Proposed Lead at the time of submission of the Lead Form;

a Lead Form (or similar document) has previously been submitted to Occupier by You or any third party with respect to the Proposed Lead;

the Proposed Lead (a) does not meet Occupier’s credit or other lead requirements, (b) is directly or indirectly involved in a business or industry that in Occupier’s sole discretion may not comply with applicable laws, (c) is on a list of restricted or prohibited parties issued by the government of the United States or any other jurisdiction, or (d) is located in an Excluded Country, or which Occupier is otherwise prohibited by agreement from accepting; or

at the time of Your submission of the Lead Form, Occupier has a lead already recorded in Occupier’s system of record that has been active within the last thirty (30) days.

Pursuit of Leads by Occupier. The method of contacting and following up with Proposed Leads will be determined in Occupier’s sole discretion; provided, however, that You shall actively support Occupier in the sales process with Proposed Leads when requested by Occupier. Occupier shall have sole discretion to refuse to offer any Products to any third party without liability to You.

An opportunity at a Proposed Lead shall remain a Proposed Lead until the earlier of: (i) the Proposed Lead declines to work with You or decides to work with a different partner; (ii) the Proposed Lead declines to work with Occupier; (iii) You withdraw the applicable Lead Form; or (iv) Occupier learns of new or different information relating to the Proposed Lead than what You submitted in the Lead Form and revokes its acceptance of such Lead Form.

COMMISSIONS.

Commissionable Leads. A Proposed Lead qualifies as commissionable (“Commissionable Lead”) only if:

You have submitted a Lead Form for the Proposed Lead in accordance with Section 3.1; and

Occupier has expressly accepted the Proposed Lead as a Commissionable Lead as provided in Section 3.2.

Commissions and Payment. Subject to Your compliance with all terms and conditions of this Agreement, Occupier will pay You commissions equal to five percent (5%) of Lead Referral Revenue (as defined in Section 12). Commission payments (less any applicable withholding taxes or other levies) will be payable on the last day of the month following the quarter in which Occupier receives payment of the Lead Referral Revenue.

Modifications. Occupier may modify the Lead Form submission process and the percentage amounts and conditions relating to commissions upon thirty (30) calendar days written notice. Such changes will only affect Lead Form’s submitted after such thirty (30) day period.

Commissions After Termination. Except in the event of termination of this Agreement due to Your breach, or termination of the brokerage or agency relationship between You and the Commissionable Lead, Occupier will continue to pay You commissions for the duration of the applicable referral payment period in accordance with Section 4.2 on Lead Referral Revenue received following termination of the Agreement for Commissionable Leads accepted prior to such termination.

No Other Payments. Except as expressly provided in this Section, You are not entitled to any fees, reimbursements or other payments. You shall promptly refund to Occupier any overpayments (e.g., Referral Fees on Lead Referral Revenue that was reduced due to returns by the customer).

TERM AND TERMINATION.

Term. This Agreement shall commence on the Effective Date and shall continue in full force and effect unless terminated as provided herein.

Termination for Convenience. Either party may terminate this Agreement for any or no reason upon giving thirty (30) days written notice to the other party.

Termination for Breach or Insolvency. Either party may, by written notice to the other party, terminate this Agreement if the other party (a) is in breach of any material term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within five (5) business days of receipt of a written request to cure from the other party; (b) terminates its business; (c) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (d) becomes subject to bankruptcy or insolvency proceeding under federal or state statutes, and such proceeding is not terminated within sixed (60) days of the institution thereof.

Effect of Termination. Upon termination of this Agreement for any reason, You shall immediately cease the use of all Occupier brochures, literature, documentation and other materials within Your control and shall return such materials to Occupier within ten (10) business days. Except as provided in Section 4.4, You shall have no rights or claims against Occupier in connection with termination, expiration or non-renewal of this Agreement; in particular, without any limitation, You hereby irrevocably waive any rights to severance or compensation for lost opportunities or investments to the maximum extent permissible under applicable law.

INDEMNIFICATION.

You will defend and indemnify Occupier from and against any and all claims, demands, liabilities, costs, losses, damages and expenses (including but not limited to, reasonable attorneys’ fees) (collectively, “Losses”) brought by any third party against Occupier which arise out of or result from any act, default, misrepresentation or any omission on Your part (including, without limitation, negligence and breach of this Agreement), or any of Your agents, employees or representatives, directly or indirectly relating to this Agreement, including without limitation any claims relating to allegations, actions or proceedings for breach of contract or warranty, regulatory or other legal claims, claims for bodily injury (including death) and damage to property.

1. LIMITATION OF LIABILITY.

OCCUPIER WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF PROFITS, REVENUE DATA, OR DATA USE. OCCUPIER’S AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE LIMITED TO FIVE THOUSAND DOLLARS ($5,000).

1. GOVERNING LAW.

This Agreement is governed by the substantive and procedural laws of the State of New York and each party agrees to submit to the exclusive jurisdiction of, and venue in, the courts in New York, New York in any dispute arising out of or relating to this Agreement. The Uniform Computer Information Transactions Act does not apply to this Agreement or to orders placed under it.

1. GENERAL PROVISIONS.
   1. Relationship of Parties. The parties are independent contractors under this Agreement and no other relationship is intended, including, but not limited to, a partnership, franchise, joint venture, agency, employer/employee, or master/servant relationship. Neither party shall act in a manner which expresses or implies a relationship other than that of independent contractor. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever. All financial and other obligations associated with Your business are solely your responsibility. As an independent contractor, the mode, manner and method used by You shall be under Your sole control and You shall be solely responsible for risks incurred in the operation of Your business and the benefits thereof. You shall bear all of Your own expenses in connection with the performance of this Agreement and will not be entitled to reimbursement of any such expenses by Occupier.
   2. No Waiver. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Neither party will be deemed to have waived any rights or remedies hereunder unless such waiver is in writing and signed by a duly authorized representative of the party against which such waiver is asserted.
   3. Severability. If any provision is held by a court of competent jurisdiction to be contrary to law, such provision shall be eliminated or limited to the minimum extent necessary so that the Agreement shall otherwise remain in full force and effect.
   4. Notices. Any notice required under this Agreement shall be provided to the other party in writing. If You have a legal dispute with Occupier or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to: Occupier, Inc., 175 Greenwich St., 38th Floor, New York, NY 10007, Attention: General Counsel, Legal Department. Notices to You shall be provided by Occupier via mail, fax or e-mail (to the address or number You provide).
   5. Assignment. This Agreement shall inure to benefit and bind the parties hereto, their successors and assigns, but You may not assign this Agreement without Occupier’s prior written consent. Any purported assignment by You without Occupier’s written consent will be void and of no effect.
   6. Force Majeure. Neither party shall be liable for loss or delay resulting from any force majeure event, including, but not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, criminal acts of third parties. Any payment date shall be extended to the extent of any delay resulting from any force majeure event.
   7. Compliance.
      1. You represent and warrant that (a) You will conduct Your business activities in a legal and ethical manner; (b) You have submitted and will submit complete and truthful information in connection with your application and all referrals; (c) You will submit all filings and obtain any approvals that may be necessary for You to perform Your obligations under this Agreement, (d) You will commit no act that would reflect unfavorably on Occupier; (e) You will comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with Your performance of this Agreement, including without limitation, privacy, anti-spam, advertising, copyright, trademark and other intellectual property laws, (f) except if you are entering this Agreement in your individual capacity, You are duly organized, validly existing and in good standing under the laws of the state or country of Your domicile and are in good standing in each other jurisdiction in which such qualification is required by law; and (g) You have the power and authority to transact the business You transact, to execute and deliver this Agreement, and to perform Your obligations under this Agreement. You acknowledge that any sums paid to You under this Agreement are for Your own account and that, except as appropriate to carry out Your duties set forth herein in a legal manner, You have no obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or anything of value to any other person in connection with the performance of Your referral activities hereunder. In particular, without limitation, You agree not to take any actions that would cause You or Occupier to violate the United States Foreign Corrupt Practices Act or any other anti-bribery law. You further agree not to engage in any form of money laundering, which involves disguising, channeling unlawfully obtained money, or transforming such money into legitimate funds.
      2. Any act, omission, or breach by Your contractors, agents or Affiliates shall be deemed an action or breach by You and You waive all of those defenses that You may have as to why You should not be liable for Your contractors’, agents’ or Affiliates’ acts, omissions and/or noncompliance with this Agreement.
      3. Export. You represent and warrant that: You are not a party with whom Occupier is prohibited from doing business with under the U.S. or applicable export control or economic sanctions laws and regulations. You will refrain from (a) referring Proposed Leads engaging in export, re-export, transfer, or end-use(s) restricted under U.S. law, and (b) disclosing any technical information related to Products to prohibited persons or destinations in violation of United States law.
   8. Survival. Upon the termination of this Agreement for any reason, in addition to the parties’ rights and obligations that survive as explicitly set forth herein, the parties’ rights and obligations under the following paragraphs shall survive: Sections 2 (Limitations on Activities), 4.5 (Commissions After Termination), 4.6 (No Other Payments), 5.4 (Effect of Termination), 6 (Indemnification), 7 (Limitation of Liability), 9.7.1 (Compliance) and others which by their nature are intended to survive.
2. Entire Agreement.

This Agreement, including all exhibits hereto, constitutes the entire agreement between the parties relating to its subject matter and supersedes all prior or contemporaneous representations, discussions, negotiations, and agreements, whether written or oral, relating to its subject matter. Any amendments or renewals to this Agreement shall be invalid unless made in writing that is signed by duly authorized representatives of both parties. In the event of any additional or inconsistent terms contained in Lead Forms, Referral Confirmations or other communications, the terms and conditions in this Agreement shall prevail unless Occupier specifically identifies the section(s) of this Agreement that Occupier intends to override in a writing signed by Occupier.

1. DEFINITIONS.

“Commissionable Period” means, in respect of a Commissionable Lead, a period of one (1) year from Your submission of the Lead Form for such Commissionable Lead.

“Excluded Countries” means any country that is subject to a United States trade embargo, that is deemed a terrorist supporting country by the United States Government, or to which United States law, rule or regulation prohibits the sale of goods and services, as such list of countries may be updated from time-to-time. 

“IP Rights” means, on a world-wide basis, copyrights, trademark rights, service marks, logos, patents, rights in trade secrets, moral rights, rights of publicity, privacy rights, authors’ rights, contract and licensing rights, goodwill, rights in domain names, and all other intellectual property rights as may exist now and/or hereafter come into existence, and all applications, registrations, renewals and extensions thereof (including continuations in part), regardless of whether such rights arise under the laws of any state, country or jurisdiction.

“Lead Referral Revenue” means any payments actually received by Occupier from a Commissionable Lead for the first year’s fees under a subscription agreement or other ordering document between Occupier and the Commissionable Lead entered into during the Commissionable Period for the Commissionable Lead’s first order of a Product, minus any taxes, subsequently credited charges, write-offs, refunds or charge backs. For the avoidance of doubt, Lead Referral Revenue does not include any amounts received for follow-up orders, additional sales, renewals, or for products or services that are not Products at the time of the relevant Referral Confirmation, such as professional services, support services, training services or third party software products purchased by a Commissionable Lead, nor does it include amounts that are owed by the Commissionable Lead but have not actually been received by Occupier.

BY CLICKING “I AGREE” YOU ARE REPRESENTING THAT (1) YOU HAVE SUBMITTED TRUE AND COMPLETE INFORMATION IN CONNECTION WITH YOUR APPLICATION AND (2) YOU ARE ENTERING INTO THIS AGREEMENT ON YOUR OWN BEHALF OR THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY OR OTHER LEGAL ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT WISH TO ENTER INTO THIS AGREEMENT ON YOUR OWN BEHALF, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN, YOU MUST CLICK “I DECLINE” AND YOU WILL NOT BE ELIGIBLE FOR PARTICIPATION IN THE OCCUPIER REFERRAL PROGRAM.