Effective Date: 06/17/2024

This Referral Agreement (this “Agreement”) is entered into by and between 1up and the “Partner” identified in the referral form.

Partner may identify one or more 1up Customers by submitting to 1up the information required on the Referral Form attached hereto as Exhibit A. If, pursuant to the terms of subsection (b) below, 1up agrees that such prospect qualifies as a new 1up Customer, and 1up elects to pursue such 1up Customer, then 1up will sign the Referral Form and return a copy to Partner within 10 business days following receipt of the Referral Form. After 1up has accepted a referral in writing or via email, Partner will introduce 1up to the appropriate contact(s) of such 1up Customer in a mutually agreed upon format (e.g., email, in-person meeting or a conference call). For purposes of this Agreement, “1up Customer” means any prospect which Partner refers to 1up and 1up accepts as provided in this Agreement.

1up may reject a referral registration if:
(i) the prospective customer has received a proposal from 1up within the previous 24 months;
(ii) the prospective customer has had more than one face-to-face meeting or substantial communications with a representative of 1up during the previous 12 months;
(iii) 1up has previously received a similar referral form for the prospective customer from a third party within the previous 6 months;
(iv) the lead is an existing customer of 1up; or
(v) 1up otherwise rejects the lead at its reasonable discretion.

The date that 1up notifies Partner of its acceptance by executing the Referral Form and returning it to Partner is the “Acceptance Date.” On the Acceptance Date, the 1up Customer becomes a “Registered Opportunity.” No 1up Customer will be deemed accepted by the other party as a Registered Opportunity until the applicable Referral Form has been executed by such party. A Referral Form is valid only for the specific opportunity identified on that Referral Form. Each Registered Opportunity will be valid beginning on the applicable Acceptance Date and ending on the first to occur of the following events:
(i) notification from the Customer that (A) the Registered Opportunity is canceled or the proposal is rejected, or (B) they wish to work with a company other than 1up for the Registered Opportunity;
(ii) the expiration of a twelve (12) month period from the applicable Acceptance Date; provided, however, the term of the Registered Opportunity may be extended for an additional three (3) month period in the sole discretion of 1up if a proposal has been submitted to the 1up Customer and the 1up Customer has not provided written notice as to the contract award within the initial twelve (12) month period;
(iii) the insolvency, bankruptcy, reorganization under the bankruptcy laws, or assignment for the benefit of creditors of either Party or the 1up Customer; or
(iv) mutual agreement of the Parties to terminate the Registered Opportunity for any reason. Upon termination of any Registered Opportunity, neither party will have any further obligations to the other party to pay any Fee (as defined below) with respect to such Registered Opportunity.

After successful completion of the qualification and introduction of a 1up Customer to 1up, 1up will be solely responsible for the sales process, including all subsequent 1up Customer contacts, negotiations and the execution of any and all agreements. Partner will participate in subsequent meetings with a 1up Customer only upon invitation from 1up. Partner will not make any representations, warranties or promises regarding 1up’s products or services (including pricing), or enter into any agreement on behalf of 1up.

Each party will appoint an individual “Liaison” who will serve as the primary point of contact for the other party for matters related to this Agreement. The Liaisons will act as coordinators between the parties with respect to their respective efforts under this Agreement. Either party may replace its Liaison with an individual of suitable qualifications and experience by notifying the other party of such new appointment. The Liaisons will meet (via telephone or in person as agreed) from time to time as necessary with respect to the activities being undertaken hereunder.

Partner may include 1up Services in Partner’s sales materials. All Partner sales materials referencing 1up Services must be reviewed and approved by 1up prior to Partner providing them to Customers. Partner may deliver 1up published marketing materials to prospects and 1up Customers.

1up will pay Partner a referral fee (“Fee”) for agreements executed with a 1up Customer who is identified as a Registered Opportunity. The Fee will be fifteen percent (15%) of the fees payable during the first year of the subscription for the applicable 1up Customer’s contract, less any amounts payable to any other third party in connection with the provision of such service. Such fees will be paid following 1up’s receipt of payment(s) from the 1up Customer(s) for the Registered Opportunity(ies). Partner will not be entitled to any additional compensation or reimbursement of any expenses. For clarity, no Fees will be paid based on one-time fees or fees specifically for implementation, set-up, training services, taxes, charges, duties or other amounts payable to 1up in connection with the applicable transaction.

Partner may distribute 1up published marketing material as set forth herein. All trademarks, trade names, copyrighted materials, service marks, logos, names, or other intellectual property rights vested in 1up, or any of its subsidiaries or affiliates, shall remain the exclusive property of 1up and will only be used by Partner for purposes of this Agreement. Partner will not otherwise use, reproduce or distribute 1up’s registered or unregistered trademarks, service marks, or trade names (collectively, the “1up Marks”). Partner acknowledges 1up’s exclusive ownership of the 1up Marks, agrees that all benefits from distribution of the 1up Marks shall inure to 1up, agrees not to take any action inconsistent with such ownership, and further agrees to take any action which 1up reasonably requests to establish and preserve 1up’s exclusive rights in and to the 1up Marks.

Each party agrees that if it obtains access to the other party’s confidential and proprietary information, including information related to such party’s business, customers, products, sales, services, software and technology (collectively, “Confidential Information”) it will use the same measures to protect such Confidential Information as it uses with respect to its own confidential information of like importance, but in no event will it use less than reasonable care, including, instructing its employees, vendors, agents, consultants and independent contractors of the foregoing and requiring them to be bound by appropriate confidentiality agreements. If a party is required by law to disclose Confidential Information, it will give the other party immediate notice of such required disclosure and preserve such party’s opportunity to seek protective legal treatment for such Confidential Information. The foregoing confidentiality obligations will survive for two (2) years from the date of expiration or termination of this Agreement.

The parties are independent contractors with respect to each other. Neither party is deemed to be an employee, agent, partner, joint venture, or legal representative of the other party for any purpose, and shall not have any right, power, or authority to create any obligation or responsibility on behalf of the other party.

Each party represents and warrants that it has full power and authority to execute this Agreement and to take all actions required by, and to perform the agreements contained in, this Agreement, and that each party’s obligations under this Agreement do not conflict with its obligations under any other agreement to which it is a party or by which it is otherwise bound.

All notices, consents, requests, instructions, approvals, and other communications made, required or permitted hereunder (each, a “Notice”) will be given in writing and delivered to the receiving party to its respective address set forth below and will be effective (i) upon personal delivery to the individual identified below, (ii) five (5) days after deposit into certified or registered mail (return receipt requested), or (iii) two (2) business days after sending by a nationally recognized overnight courier. Any party hereto may change its address set forth below by written notice to the other party hereto in accordance with the terms of this Section 9.

The term of this Agreement (the “Original Term”) is for a period of one year from the Effective Date, unless earlier terminated in accordance with this Section 10. At the expiration of the Original Term, this Agreement may renew for subsequent one-year renewal terms (each a “Renewal Term”) as mutually agreed by both parties. Either party may terminate this Agreement:
(a) upon 30 days written notice to the other party;
(b) if the other party commits a material breach of any term of this Agreement and fails to cure such breach within 30 days of receiving written notice of the breach from the other party. Each party will promptly return to the other party any of the other party’s published marketing material in its possession upon the termination of this Agreement for any reason. 1up acknowledges and agrees that upon termination of this Agreement it will be required to continue to pay Fees resulting from Registered Opportunities accepted prior to the date of termination.

The provisions of Sections 1(c), 2, 4, 6, 7, 8, 9, 10, 11, 12, and 13 and any other terms which by their very nature are intended to survive termination will survive any termination or expiration of this Agreement. All other rights and obligations of the parties will cease upon termination or expiration of this Agreement, other than liabilities that have accrued prior to such termination or expiration.

1up and Partner each agree that it shall comply with and shall not cause or require the other to violate any applicable laws or regulations in connection with any services or related payments, if any, provided or made under this Agreement. Each party shall be responsible for any fines, sanctions, penalties, or fees resulting from such party’s failure to comply with applicable laws and regulations. Each party shall be responsible for the payment of any and all applicable international, US federal and state, and local taxes relating to its business.

Headings stated in this Agreement are for convenience of reference only and are not intended as a summary of such sections and do not affect, limit, modify, or construe the contents thereof.

This Agreement will be governed by and in accordance with the laws of the State of New York without reference to its conflict of laws principles.

No failure or delay (in whole or in part) on the part of either party to exercise any right or remedy hereunder will operate as a waiver thereof or affect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law.

If any provision contained in this Agreement is or becomes invalid, illegal, or unenforceable in whole or in part, such invalidity, legality, or unenforceability will not affect the remaining provisions of this Agreement, and such provision will be deemed modified to the extent necessary to render it enforceable under applicable law and consistent with the parties’ original intentions as of the Effective Date.

Neither party shall be permitted to assign, transfer, license, franchise, or otherwise convey this Agreement or any rights or obligations hereunder or delegate obligations hereunder to any third party without the other party’s prior written consent (not to be unreasonably withheld or delayed).

Each party understands this Agreement is non-exclusive. Without limiting the generality of the foregoing, each party acknowledges that nothing in this Agreement prevents or limits the other party from marketing and licensing the other party’s products or any other software or service, in whole or in part, directly or indirectly, to any third parties or from appointing representatives, resellers, distributors and other marketing agents, without liability to the other party.

This Agreement, including all exhibits hereto, constitutes the entire Agreement between the parties with respect to the subject matter hereof and supersedes all prior contemporaneous oral or written understandings or agreements among the parties which relate to the subject matter hereof. No modification or amendment of this Agreement or any of its provisions shall be binding upon any party unless made in writing and duly executed by authorized representatives of all parties.