Botkeeper Strategic Partner Agreement

1. COMPANY AND STRATEGIC PARTNER OBLIGATIONS; LEADS; INTELLECTUAL PROPERTY

1.1 Obligations.
Strategic Partner agrees to use diligent, commercially reasonable efforts to promote and refer potential customers to Botkeeper, on a non-exclusive basis, solely within the Territory (as defined in Exhibit B). Without limitation, Strategic Partner may promote Botkeeper’s product (the “Product”) to certain of Strategic Partner’s own existing customers and prospects, from time to time, in Strategic Partner’s discretion.

1.2. Lead Form; Accepted Leads; Qualified Customers.
Strategic Partner shall submit each bona fide prospective customer (each, a “Lead”) to Botkeeper using an approved method provided or designated by Botkeeper (such as a lead form, unique tracking link, integration, or custom payment link). All submitted Leads shall be subject to acceptance by Botkeeper based on the criteria set forth herein. Botkeeper shall not accept a submitted Lead if (a) the Lead is already under contract to receive any product or service from Botkeeper, (b) the Lead was previously identified to Botkeeper by any reseller, distributor, or other partner prior to Strategic Partner’s submission, (c) Botkeeper has already entered into discussions with the Lead prior to Strategic Partner’s submission, or (d) the Lead is solicited or procured by Strategic Partner in a manner not compliant with this Agreement. Once a Product Agreement has been fully executed between Botkeeper and an accepted Lead, such Lead shall be deemed a 'Qualified Customer' under this Agreement. Accepted Leads will expire 180 days after acceptance unless Botkeeper extends this period in writing at its sole discretion.

1.3. Botkeeper Materials. (See Marketing Plan).
(a) Botkeeper may provide Strategic Partner and its related entities, including, without limitation, (collectively, the “Strategic Partner Entities”) with certain materials (such as, for example, marketing collateral or demonstration versions of the Product) solely for use in unmodified form in promoting the Product hereunder (collectively, the “Botkeeper Materials”).
(b) Strategic Partner may list Botkeeper as a vendor on Strategic Partner’s and/or the Strategic Partner Entities’ website(s) and/or online platforms, in Strategic Partner’s sole discretion, and may provide the Botkeeper Materials to Leads, in Strategic Partner’s sole discretion.
(c) The parties acknowledge that they may have entered into, or may in the future enter into, other agreements unrelated to this Strategic Partner Agreement. Nothing in this Agreement shall modify, amend, limit, supersede, or terminate the rights or obligations of either party under any such separate agreements.

1.4. Intellectual Property, Use of Marks.
(a.) Use of Botkeeper Marks. Subject to the terms of this Agreement, Botkeeper hereby grants to Strategic Partner and the Strategic Partner Entities a nonexclusive, non-transferable, royalty-free, personal right to use the trademarks, logos, and other branded materials provided by Botkeeper to Strategic Partner and the Strategic Partner Entities (collectively, the “Botkeeper Marks”) solely in connection with performing its obligations under this Agreement, but Botkeeper may revoke or modify such license to Strategic Partner and the Strategic Partner Entities in its sole discretion. Botkeeper represents and warrants to Strategic Partner and the Strategic Partner Entities that it is the exclusive owner of all right, title, and interest in and to the Botkeeper Marks and the Botkeeper Materials and all other materials or content that Botkeeper provides to Strategic Partner and the Strategic Partner Entities pursuant to this Agreement, including any photos, and use of such materials by Strategic Partner and/or the Strategic Partner Entities does not violate or infringe the rights of any third parties. Strategic Partner and the Strategic Partner Entities shall use such Botkeeper Marks only in compliance with Botkeeper’s then-current trademark guidelines, presently located at https://www.botkeeper.com/botkeeper-press-kit, incorporated herein as if fully set forth and as may be prescribed or amended by Botkeeper from time to time, at Botkeeper’s sole discretion. Botkeeper grants no rights under this Agreement other than those expressly granted herein. Strategic Partner acknowledges Botkeeper’s sole ownership of the Botkeeper Marks and all associated goodwill and agrees that, except for use of the Botkeeper Marks as approved in advance in writing by Botkeeper in connection and consistent with this Agreement, it will not directly or indirectly at any time adopt, use, or register any Botkeeper Marks or similar or dilutive identifier, in whole or in part, in connection with any business, goods, or services. Strategic Partner agrees that all use of the Botkeeper Marks by Strategic Partner and the Strategic Partner Entities will inure to the benefit of Botkeeper. Strategic Partner agrees that the manner of use and display of the Botkeeper Marks will conform to the quality and use standards set and controlled by Botkeeper, as amended from time to time. Botkeeper reserves the right to periodically review Strategic Partner’s and the Strategic Partner Entities’ use of the Botkeeper Marks and Strategic Partner agrees to promptly correct any conditions as directed by Botkeeper. Strategic Partner shall cooperate fully with Botkeeper to facilitate periodic review of Strategic Partner’s and the Strategic Partner Entities’ use of the Botkeeper Marks and of Strategic Partner’s compliance with its obligations under this Section. Upon termination of this Agreement or notice to cease and desist use of the Botkeeper Marks for any reason, Strategic Partner agrees to remove any links to any Botkeeper website used under this Agreement within five (5) business days of receiving Botkeeper’s termination or cease and desist notice.

(b.) Use of Strategic Partner Marks. Subject to the terms of this Agreement, Strategic Partner shall provide high-resolution logo(s) and other branded materials for Strategic Partner and/or Strategic Partner Entities (collectively, the “Strategic Partner Marks”), as determined by Strategic Partner in its sole discretion, for use by Botkeeper in materials created by Botkeeper related to the referral arrangement established by Botkeeper and Strategic Partner pursuant to this Agreement. Strategic Partner represents and warrants that it or one of the Strategic Partner Entities, as applicable, is the exclusive owner of all right, title, and interest in and to the Strategic Partner Marks and any other materials or content Strategic Partner provides to Botkeeper pursuant to this Agreement, including any photos (collectively, “Strategic Partner Materials”), and use of such Materials by Botkeeper does not violate or infringe the rights of any third parties. Strategic Partner grants to Botkeeper a nonexclusive, non-transferable, royalty-free, personal right to use the Strategic Partner Materials as contemplated by and in accordance with this Agreement, but Strategic Partner may revoke or modify such license to Botkeeper in its sole discretion. Botkeeper shall use such Strategic Partner Marks only in compliance with Strategic Partner’s then-current trademark guidelines as furnished to Botkeeper. Strategic Partner grants no rights under this Agreement other than those expressly granted herein. Botkeeper acknowledges Strategic Partner’s sole ownership of the Strategic Partner Marks and all associated goodwill and agrees that, except for use of the Strategic Partner Marks as approved in advance in writing by Strategic Partner in connection and consistent with this Agreement, it will not directly or indirectly at any time adopt, use, or register any Strategic Partner Marks or similar or dilutive identifier, in whole or in part, in connection with any business, goods, or services. Botkeeper agrees that all use of the Strategic Partner Marks by Botkeeper will inure to the benefit of Strategic Partner. Botkeeper agrees that the manner of use and display of the Strategic Partner Marks will conform to the quality and use standards set and controlled by Strategic Partner, as amended from time to time. Strategic Partner reserves the right to periodically review Botkeeper’s use of the Strategic Partner Marks and Botkeeper agrees to promptly correct any conditions as directed by Strategic Partner. Botkeeper shall cooperate fully with Strategic Partner to facilitate periodic review of Botkeeper’s use of the Strategic Partner Marks and of Botkeeper’s compliance with its obligations. Upon termination of this Agreement or notice to cease and desist use of the Strategic Partner Marks for any reason, Botkeeper agrees to remove any links to any Strategic Partner website used under this Agreement within five (5) business days of receiving Strategic Partner’s termination or cease and desist notice.

2. PAYMENTS.

2.1. Fees and Expenses.
As consideration for Strategic Partner’s efforts in identifying and referring Leads to Botkeeper pursuant to the terms of this Agreement, Botkeeper shall pay Referral Fees to Strategic Partner for Qualified Customers. Referral Fees and payment schedules shall be specified separately in the applicable Partner Enrollment Form. Except as expressly provided otherwise in this Agreement, each party will be responsible for all costs and expenses incurred in connection with its performance.

2.2. Taxes.
Each party shall be responsible for and pay any and all applicable federal, state, local, and foreign taxes, duties, tariffs, levies, imposts, deductions, charges, withholdings, and similar assessments (including without limitation, sales taxes, use taxes, and value-added taxes) and all related liabilities, including interest, penalties, or additions thereto (Taxes), resulting from its own activities under this Agreement. Promptly after execution of this Agreement, Strategic Partner shall deliver to Botkeeper a properly completed and duly executed Department of the Treasury Internal Revenue Service Form W-9 or, if Advisor is a non-U.S. person, a Department of the Treasury Internal Revenue Service Form W-8BEN (or other appropriate Form W-8).

3. PROPRIETARY RIGHTS.

3.1. No Implied License.
(a) Except for the limited rights and licenses expressly granted hereunder, no other license of the Product, Botkeeper Marks, or Botkeeper Materials is granted by Botkeeper, no other use of the Product, Botkeeper Marks, and Botkeeper Materials is permitted by Botkeeper, and Botkeeper (and its licensors) shall retain all right, title, and interest in and to the Product, Botkeeper Marks, and Botkeeper Materials (including all intellectual property and proprietary rights embodied therein). Strategic Partner agrees not to take any action inconsistent with Botkeeper’s title and ownership of the Product, Botkeeper Marks, and Botkeeper Materials.

(b) Except for the limited rights and licenses expressly granted hereunder, no other license of the Strategic Partner Marks and Strategic Partner Materials is granted by Strategic Partner, no other use of the Strategic Partner Marks and Strategic Partner Materials is permitted by Strategic Partner, and Strategic Partner (and its licensors, as applicable) shall retain all right, title, and interest in and to the Strategic Partner Marks and Strategic Partner Materials (including all intellectual property and proprietary rights embodied therein). Botkeeper agrees not to take any action inconsistent with Strategic Partner’s title and ownership of the Strategic Partner Marks and Strategic Partner Materials.

3.2. Confidentiality.
Confidential Information means all trade secrets, know-how, software, pricing, customer, and other financial, business, or technical information disclosed by or for a party in relation to this Agreement that is designated as confidential or which a reasonable person would understand its confidential or proprietary nature. Confidential Information does not include any information the receiving party can demonstrate is (a) rightfully furnished to it without restriction by a third party without breach of any separate nondisclosure obligation to the disclosing party, (b) generally available to the public without breach of this Agreement, or (c) contained in a Lead Form. Except for the specific rights granted by this Agreement, neither party shall use or disclose any of the other’s Confidential Information without its prior written consent. A party receiving Confidential Information shall use reasonable care to protect it. Each party shall be responsible for any breach of confidentiality by its employees and contractors. If required by law, the receiving party may disclose Confidential Information of the disclosing party, but will give adequate prior notice of such disclosure to permit the disclosing party to intervene and request protective orders or other confidential treatment therefore.

3.3. Irreparable Harm.
Any breach or threatened breach of this Section 3 will cause irreparable harm to the non-breaching party for which money damages will not be an adequate remedy. Therefore, the non-breaching party shall, in addition to any other legal or equitable remedies, be entitled to an injunction or similar equitable relief against any such breach or threatened breach without the necessity of posting any bond.

4. WARRANTIES AND DISCLAIMERS.

4.1. Warranties.
All warranties concerning the Product, Botkeeper Materials, and otherwise shall run directly from Botkeeper to each Qualified Customer as set forth in the Product Agreement executed by Botkeeper and such Qualified Customer or other writing. In no event shall Strategic Partner make any representation, warranty, or offer concerning the Product, Botkeeper Materials, or terms or conditions of any Product Agreement, except as expressly authorized in advance in writing by Botkeeper. Strategic Partner shall defend, indemnify, and hold harmless Botkeeper, its directors, officers, employees, agents, and affiliates against any and all claims, liabilities, losses, damages, costs, and expenses arising out of or related to Strategic Partner’s unauthorized representations, warranties, or offers concerning the Product, Botkeeper Materials, or terms or conditions of any Product Agreement.

4.2. Disclaimers.
NO REPRESENTATION OR WARRANTY CONCERNING THE PRODUCT, BOTKEEPER MATERIALS, OR OTHERWISE IS MADE BY BOTKEEPER TO STRATEGIC PARTNER HEREUNDER. TO THE FULLEST EXTENT PERMITTED BY LAW, BOTKEEPER SPECIFICALLY DISCLAIMS ALL WARRANTIES IN RESPECT THEREOF, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

5. LIMITATION OF LIABILITY.

EXCEPT FOR (A) EITHER PARTY’S BREACH OF SECTION 3 OR (B) STRATEGIC PARTNER’S OBLIGATIONS UNDER SECTION 4.1 AND SECTION 6, IN NO EVENT SHALL EITHER PARTY BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE), FOR ANY (I) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES OR PROFITS, OR (II) ANY DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY BOTKEEPER TO STRATEGIC PARTNER HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6. INDEMNIFICATION.

Botkeeper shall indemnify and defend Strategic Partner against all losses, costs, expenses, or liability that Strategic Partner incurs arising out of a third-party claim against Strategic Partner that Botkeeper’s Marks, Botkeeper’s Materials, or any other materials or services provided by Botkeeper or used in accordance with this Agreement infringe upon a valid United States Patent, copyright, or trade secret of any third party, provided that if any such third-party claim is brought against Strategic Partner, then Strategic Partner will: (a) immediately notify Botkeeper; (b) make commercially reasonable efforts to mitigate the losses arising in connection with the third-party claim; (c) give Botkeeper the option to conduct the defense of the third-party claim, including without limitation negotiations for settlement; and (d) provide Botkeeper with reasonable assistance in conducting the defense of the third-party claim, all at Botkeeper’s cost and expense. Botkeeper will have no obligation to indemnify Strategic Partner under this Section with respect to any and all claims that arise out of or are based upon (i) any modification of Botkeeper’s Service by Strategic Partner or any third party, (ii) any unauthorized use of the Product, or (iii) the combination, operation, or use of the Product by Strategic Partner or any third party with other programs, products, software, or data not supplied by Botkeeper.

7. TERM AND TERMINATION.

7.1. Term & Termination.
This Agreement shall be effective for a period of one (1) year from the Effective Date, after which it will automatically renew annually unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. Either party may terminate this Agreement for convenience with sixty (60) days’ prior written notice, or for cause in accordance with Section 7.2.

7.2. Effects of Termination.
Upon any termination of this Agreement, all rights, obligations, and licenses of the parties hereunder shall cease except that (a) any Referral Fees derived from Qualified Customers prior to the termination date shall be paid by Botkeeper to Strategic Partner in accordance with the terms set forth in Exhibit B, (b) unless Botkeeper terminates this Agreement for Strategic Partner’s material breach (in which case this clause (b) of Section 7.2 shall not apply), Botkeeper shall continue to pay to Strategic Partner all Referral Fees derived from Qualified Customers after the termination of this Agreement in accordance with the terms set forth in Exhibit B, (c) Strategic Partner shall immediately stop using the Botkeeper Materials and promoting the Product, and (d) each party shall promptly return to the other or, if so directed by the other party, destroy all originals and copies of any Confidential Information and all information, records, and materials developed therefrom (including any Botkeeper Materials).

7.3 Survival of Certain Sections.
This Section 7.2, as well as Sections 5, 6, and 8, shall survive the termination of this Agreement.

8. MISCELLANEOUS.

The parties are independent contractors and are not partners, joint ventures', or otherwise affiliated and neither has any right or authority to bind the other in any way. Neither party is an employee or agent of the other. This Agreement shall be construed in accordance with the laws of the State of Florida, without regard to its conflict of law’s provisions thereof. Any notice required or permitted in this Agreement shall be in writing and shall be delivered personally, or by registered or certified mail, postage prepaid, addressed to the respective party at the addresses given herein or at such other address designated by written notice. Neither party may assign, without the prior written consent of the other, this Agreement to any entity, provided that this Agreement may be assigned by either party without consent to any entity that acquires all or substantially all of the assigning party’s assets or business. If any provision of this Agreement is held invalid or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full effect and enforceable. This Agreement (including the attached exhibits and schedules) constitutes the entire agreement between the parties and supersedes any and all prior agreements with respect to the subject matter hereof. This Agreement may not be amended, modified, or provision hereof waived, except in a writing signed by the parties hereto. No waiver by either party shall constitute a continuing waiver or waiver of any other provision of this Agreement. The parties agree that this Agreement may be signed by manual, facsimile, or electronic signatures and in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

9. DISPUTE RESOLUTION.

Any disputes arising out of or related to this Agreement shall be resolved through good faith negotiations between the parties. If the dispute cannot be resolved within thirty (30) days, it shall be submitted to mediation before a mutually agreed mediator. If mediation fails, the dispute shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association, and the arbitration shall take place in St. Petersburg, Florida.

10. AUDIT RIGHTS.

Botkeeper shall have the right to audit the Strategic Partner's records related to the referral fees to ensure compliance with this Agreement. Such audits shall be conducted during normal business hours and with at least ten (10) business days' prior written notice.

11. TERMINATION FOR CONVENIENCE.

Either party may terminate this Agreement for convenience with sixty (60) days' prior written notice to the other party.

12. CONFIDENTIALITY AND DATA PROTECTION.

Both parties agree to maintain the confidentiality of all proprietary information received from the other party and to comply with all applicable data protection laws regarding customer information.

13. FORCE MAJEURE.

Neither party shall be liable for any delay or failure in performing its obligations under this Agreement due to circumstances beyond its reasonable control, including, but not limited to, acts of God, natural disasters, pandemics, war, or governmental actions.

14. GOVERNING LAW.

This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict of law principles. Any legal proceedings arising out of this Agreement shall be brought in the state or federal courts located in St. Petersburg, Florida.

15. MODIFICATIONS AND AMENDMENTS.

Any modifications or amendments to this Agreement must be in writing and signed by both parties.

16. INDEMNITY FOR BREACH OF CONFIDENTIALITY.

Each party shall indemnify, defend, and hold harmless the other party from and against any claims, liabilities, losses, damages, costs, and expenses arising out of or related to any breach of confidentiality obligations under this Agreement.

17. LIMITATION OF LIABILITY.

Except for (a) either party’s breach of Section 3 or (b) Strategic Partner’s obligations under Section 4.1 and Section 6, in no event shall either party be liable concerning the subject matter of this Agreement, regardless of the form of any claim or action (whether in contract, negligence, strict liability, or otherwise), for any (i) indirect, punitive, incidental, reliance, special, exemplary, or consequential damages including, but not limited to, loss of revenues or profits, or (ii) any direct damages, in the aggregate, in excess of the amounts paid or payable by Botkeeper to Strategic Partner hereunder during the 12-month period prior to the date the cause of action arose, even if advised of the possibility of such damages.

18. SEVERABILITY.

If any provision of this Agreement is held invalid or unenforceable in any respect, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full effect and enforceable.

Exhibit A

Upon signing of this Agreement, a referral link, lead form, or custom payment link will be created and released to the Strategic Partner.

Exhibit B

Territory and Compensation

Territory:
The Territory applicable to Strategic Partner shall be defined exclusively in a separate, executed written agreement or order form between Botkeeper and Strategic Partner.

Referral Fees:
The Referral Fees payable to Strategic Partner—including rates, amounts, frequency, duration, payment terms, and any customer incentives—shall be defined exclusively in a separate, executed written agreement or order form between Botkeeper and Strategic Partner. Botkeeper's obligation to pay Referral Fees under this Agreement shall survive termination only for Referral Fees accrued prior to termination, unless explicitly agreed otherwise by both parties in writing.

Product Fees Definition:
"Product Fees" mean non-cancellable, non-refundable, recurring fees payable by a Qualified Customer to Botkeeper pursuant to the Qualified Customer’s Product Agreement, excluding any setup, implementation, hardware, third-party charges, taxes, or governmental assessments, and net of any refunds or credits.

Survival of Referral Fees Upon Termination:
Unless Botkeeper terminates this Agreement due to Strategic Partner’s material breach (in which case no further Referral Fees shall be due), Botkeeper shall continue to pay Strategic Partner any Referral Fees accrued up to the termination date. Except as expressly stated herein, no Referral Fees shall accrue or be payable after the termination date of this Agreement.