1. DEFINITIONS. Capitalized terms used but not defined in these Envoy Terms have the meanings given in the Program Agreement (as defined below). The following terms have the following meanings, and all other terms defined in these Envoy Terms have the meanings provided in context.
1.1 “Authorized Prospect” will mean, unless otherwise limited on the Program Agreement or elsewhere in writing by Curve (email is acceptable), any third party, provided such third party is not (i) an existing client of Curve, (ii) currently engaged in substantive discussions with Curve, or has engaged in substantive discussions in the past ninety (90) days, for the sale of Curve Offerings, or (iii) previously been submitted by Envoy Partner or any third party.
1.2 “Confidential Information” will mean all written and oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential. Without limiting the foregoing, any non-public information regarding or related to any Authorized Prospect or its current or prospective relationship with Curve will be considered Curve’ Confidential Information.
1.3 “Customer” will mean any third party, including individuals, business entities, or other business organizations, to which Curve provides the Curve Offerings pursuant to a Customer Agreement, as defined herein.
1.4 “Customer Agreement” will mean any of Curve’ standard forms of written contract pursuant to which Curve provides the Curve Offerings to or for such Customer.
1.5 “Program Agreement” means an agreement, executed by both Parties, that reference these Envoy Terms.
1.6 “Referral Demo Customer” will mean any Authorized Prospect who schedules and attends a Private Demo (as defined in Section 2.1) from Curve of the Curve Offerings.
1.7 “Referral Customer” will mean any Referral Demo Customer which enters into a Customer Agreement within one hundred twenty (120) days of attending a Private Demo from Curve of the Curve Offering.
1.8 “Curve Offerings” will meant the products and services offered by Curve, as identified on the Program Agreement.
2. APPOINTMENT; REFERRALS
2.1 Appointment. Curve hereby appoints Envoy Partner, and Envoy Partner hereby accepts such appointment, as Curve’s non-exclusive referral partner for the marketing and promotion of Curve Offerings, the referral of Authorized Prospects to attend a private demo held by Curve related to the Curve Offerings (the “Private Demo”) and the referral of leads for the sale of Curve Offerings (collectively, the “Envoy Program Services”), as further set forth in the Agreement.
2.2 Scope of Authority. Envoy Partner’s sole authority shall be to (a) market and promote Curve Offerings in performance of the Envoy Program Services as set forth in this Agreement, and (b) provide Authorized Prospects to Curve. The Parties agree that Curve will directly enter into agreements with Customers for the provision of Curve Offerings to such Customers. Envoy Partner has no authority to distribute or resell Curve Offerings, or to make any commitments, agreements, or to incur any liabilities whatsoever on behalf of Curve.
2.3 Independent Contractors. In making and performing the Agreement, Envoy Partner and Curve act and will act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement will be construed or implied to create an agency, partnership, or employer-and-employee relationship between them. Except as expressly set forth herein, at no time will either Party make commitments or incur any charges or expenses for, or in the name of, the other Party. Envoy Partner agrees to indemnify, defend and hold harmless Curve, its officers, directors, and employees, from and against any losses, liabilities, costs (including reasonable attorneys’ fees) and damages resulting from any claim by a third party relating to any allegation that Envoy Partner has acted as an agent, partner, or employee of Curve.
2.4 Loyalty. During the Term, Envoy Partner agrees that it will not (a) hire an employee or contractor of Curve without Curve’ consent, provided this restriction does not apply to persons hired in response to a general advertisement or posting for a position by Envoy Partner; or (b) make any statement to any person that disparages Curve or its products and/or services, places Curve or its products and/or services in a false or negative light, or falsely or negatively compares or contrasts any of the Curve products and/or services to the products of any third party
2.5 Envoy Partner Obligations. Envoy Partner will undertake all measures necessary to ensure that its marketing of the Curve Offerings complies in all respects with all applicable laws, statutes, regulations, ordinances and other rules promulgated by governing authorities having jurisdiction over the Parties or the Curve Offerings. Envoy Partner will not make (i) any false or misleading representations about the Curve Offerings to Authorized Prospects or others, or (ii) any representations, warranties, or guarantees with respect to the Curve Offerings, Curve, or any of Curve’ obligations to any third party that are not consistent with the terms of the Agreement. Envoy Partner acknowledges and agrees that Curve derives substantial value from the goodwill associated with the Curve Offerings. Envoy Partner will undertake all measures necessary to ensure that its promotional activities hereunder conform to industry standards of professionalism and fair practices, and Envoy Partner understands that Curve will have the right to terminate the Agreement in the event that Curve determines in its reasonable discretion that Envoy Partner has failed to meet any of the foregoing standards of this Section 2.5.
3. REFERRAL PROCESS; REFERRALS
3.1 Identification of Authorized Prospects. During the Term (as defined in Section 6.1), Envoy Partner shall use commercially reasonable efforts to identify Authorized Prospects to attend a Private Demo. In the event that any Authorized Prospect desires to obtain the Curve Offerings and/or attend a Private Demo, Envoy Partner will provide Curve all contact information as reasonably requested by Curve. In addition, at Curve’s request, Envoy Partner shall assist Curve in making contact with the Authorized Prospect by arranging an introduction, meeting, conference call, or other means of communication between Curve and the Authorized Prospect. Curve retains the right, in its sole and absolute discretion, to refuse to offer the Curve Offerings to any third party, including, without limitation, any Authorized Prospect.
3.2 Referral Customers. Notwithstanding any other provision of this Agreement, no entity will be deemed a Referral Customer hereunder unless and until: (a) such Authorized Prospect has become a Referral Demo Customer pursuant to Envoy Partner’s performance of the Envoy Program Services; and (b) both such entity and Curve have executed a Customer Agreement within one hundred twenty (120) days of attending a Private Demo from Curve of the Curve Offering, and as a direct result of Envoy Partner’s activities under the Envoy Terms. Envoy Partner agrees and acknowledges that the relationship between Curve and any Customer, including the provision of Curve Offerings to such Customer, will be governed solely by the terms of the relevant agreement(s) between Curve and such Customer, and that the Envoy Terms impose no obligation upon Curve under any agreement between Envoy Partner and any third party.
3.3 Customer Determination. Curve will determine in good faith whether any Authorized Prospect becomes a Referral Demo Customer or a Referral Customer due to Envoy Partner’s efforts. Any disputes regarding whether an Authorized Prospect became a Referral Demo Customer or Referral Customer and whether Referral Partner is entitled to a Referral Fee (as defined in Section 5.1) with respect to such Authorized Prospect will be discussed by the parties in good faith on a case-by-case basis.
4. PROMOTIONAL MATERIALS; INTELLECTUAL PROPERTY
4.1 License to Promotional Materials and Trademarks. During the Term Curve may make available to Envoy Partner certain sales collateral and/or other graphic or textual material, including links to Curve’s website or associated sales microsites, to aid in communication of the Curve Offerings (“Promotional Materials”). Subject to and conditioned on Envoy Partner’s compliance with this Agreement, Curve hereby grants to Envoy Partner during the Term, a nonexclusive, nontransferable, royalty-free, non-sublicensable, limited license to use, reproduce and display: (a) the Promotional Materials in accordance with the terms hereof; and (b) the trademarks, service marks, logos, domain names or other indicators of source designated by Curve in writing (the “Licensed Marks”) in the form and manner approved by Curve, in each case solely for the purpose of promoting the Curve Offerings. Envoy Partner may not (i) use any graphic, textual or other materials to promote the Curve Offerings other than the Promotional Materials or the Licensed Marks unless Curve has approved such other materials in advance, or (ii) modify the Promotional Materials provided by Curve or the Licensed Marks in any manner, in each case without Curve’ approval in writing in advance.
4.2 Ownership. Curve or its licensors retain all right, ownership, and interest in the Promotional Materials, the Licensed Marks and the Curve Offerings (collectively, “Curve IP Rights”), including all intellectual property rights. Nothing in this Agreement shall be construed to grant Envoy Partner any rights, ownership or interest in the Promotional Materials (including the underlying intellectual property), the Licensed Marks other than the rights to use the Promotional Materials and Licensed Marks granted herein. Envoy Partner will not take any action that jeopardizes or challenges Curve’ or its licensors’ proprietary rights or acquire any right in the Curve IP Rights, except the limited license rights specified herein, and will not register or attempt to register any domain name, trademark or other intellectual property right that incorporates any Licensed Mark or is confusingly similar to a Licensed Mark. All uses of the Promotional Materials and the Licensed Marks, and all goodwill associated therewith, shall inure solely to the benefit of Curve.
5. FEES AND PAYMENTS
5.1 Referral Fees. During the Term, and except for any alternate payments agreed to by the Parties, Curve will pay to Envoy Partner the amounts set forth on the Program Agreement (“Referral Fees”). Except as set forth in the preceding sentence, Curve will have no obligation to pay, and Envoy Partner will have no right to receive, any share of revenues paid or payable to Curve at any time by any Referral Demo Customers, Referral Customers or any other Customers. Curve will pay any amounts payable under this Section within thirty (30) days after the end of the of each calendar quarter (i.e., within 30 days after each of March 31, June 30, September 30, and December 31).
5.2 Operating Expenses. Envoy Partner will bear all expenses incurred in performance of its obligations hereunder in marketing and promoting the Curve Offerings to any prospective Customer.
5.3 Taxes. Envoy Partner will be solely responsible for all national, state and local sales, use, value-added, personal property and other taxes and levies applicable to any consideration paid or payable by Curve hereunder or which Curve may otherwise be required to pay or collect upon the payment of any amount hereunder. Should any such tax or levy be assessed against Curve, Envoy Partner agrees to pay such tax or levy and indemnify Curve against losses or expenses associated with any claim for such tax or levy.
6. TERM AND TERMINATION
6.1 Term. The Agreement will commence on the Effective Date and will continue for a period of one (1) year (the “Initial Term”). This Agreement shall renew automatically for additional one-year terms unless one Party provides the other written notice no later than thirty (30) days prior to the expiration of the then-current term of the Agreement of its intention to allow the Agreement to expire at the end of such term (each, a “Renewal Term, and together with the Initial Term, the “Term”).
6.2 Termination. Curve will have the right to terminate the Agreement, in whole or in part, for convenience at any time upon thirty (30) days’ prior written notice to the other Party.
6.3 Termination for Breach. Either Party may, at its option, may terminate this Agreement, in whole or in part, in the event of a material breach by the other Party that remains uncured (to the extent curable) for a period of fifteen (15) days following receipt of written notice by the breaching party of such breach. Further, the Envoy Terms may be terminated by Curve immediately upon written notice to Envoy Partner in the event Envoy Partner breaches Section 2.4.
6.4 Effect of Termination. Upon any termination or expiration of this Agreement: (a) Envoy Partner will immediately cease all marketing and promotion of the Curve Offerings; (b) Envoy Partner will immediately cease use of Curve’s Confidential Information; and (c) Envoy Partner will promptly return or destroy all copies of any Curve’s Confidential Information then in its possession.
6.5 Survival. Sections 1, 2.3, 3.3, 4, 5, 6.4, 7.2, and 8 through 11 will survive the termination or expiration of the Agreement.
7. WARRANTY AND DISCLAIMER
7.1 Mutual Representations. Each Party hereby represents and warrants: (a) that it has the legal right and authority to enter into and perform its obligations under the Agreement; (b) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such Party; and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
7.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH UNDER THE AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CURVE DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, NON-INTERFERENCE, SYSTEM INTEGRATION OR ACCURACY OF ANY INFORMATION PROVIDED HEREUNDER. THE FOREGOING DISCLAIMER IS MADE SOLELY WITH RESPECT TO THE AGREEMENT.
8.1 Envoy Partner shall indemnify, defend, and hold Curve harmless from and against any and all liabilities, losses, damages, costs, fees, and expenses (including reasonable attorneys’ fees) resulting from or arising out of any third party claims, suits, actions, or proceedings (collectively, “Claims”) based on allegations that (a) Envoy Partner breached any representation or warranty contained herein, or (b) Envoy Partner made a representation or warranty regarding Curve or the Curve Offerings that is inconsistent with the written high-level description of Curve Offerings or the Curve Materials provided to Envoy Partner by Curve, or is otherwise unauthorized by Curve.
9. LIMITATION OF LIABILITY
9.1 EXCLUSIONS OF REMEDIES. IN NO EVENT WILL CURVE BE LIABLE TO ENVOY PARTNER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF CURVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9.2 LIMITATION OF LIABILITY. WITHOUT LIMITING THE PROVISIONS OF SECTION 7.1, THE CUMULATIVE LIABILITY OF CURVE TO ENVOY PARTNER FOR ALL CLAIMS ARISING FROM OR RELATING TO THE AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT PAID TO ENVOY PARTNER BY CURVE DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT, OR OMISSION GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
10.1 Ownership. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information. All Confidential Information is proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. Each Party agrees as follows: (a) to use the Confidential Information only for the purposes described herein; (b) that such Party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (c) that, except as required in performance of a Party’s obligations under this Agreement, neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential Information to such of its personnel, agents and consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (e) to return or destroy all Confidential Information of the other Party in its possession upon termination or expiration of this Agreement. In the event of any unauthorized disclosure or loss of Confidential Information, the receiving Party will notify the disclosing Party as soon as possible.
10.2 Exceptions. The foregoing provisions will not apply to Confidential Information that: (a) is or becomes publicly available or enters the public domain through no fault of the receiving Party; (b) is rightfully communicated to the receiving Party by persons not bound by confidentiality obligations with respect thereto; (c) is already in the receiving Party’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (d) is independently developed by the receiving Party; or (e) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body or applicable law, provided the Party making the disclosure pursuant to the order will first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement.
11.1 Entire Agreement; Amendment. The Agreement, including the Program Agreement and Envoy Terms, constitutes the entire understanding of the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification will be binding unless it is in writing and signed by both Parties.
11.2 Relationship of Parties. The Parties hereto are independent contractors. Nothing in this Agreement will be deemed to create an agency, employment, partnership, fiduciary, or joint venture relationship between the Parties. Neither Party is the representative of the other Party for any purpose and neither Party has the power or authority as agent, employee, or in any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other Party for any purpose whatsoever.
11.3 Governing Law. This Agreement will be governed in accordance with the laws of the State of Utah without reference to its conflicts of law principles. The Parties agree that the exclusive jurisdiction of any actions arising out of this Agreement will be in the state or federal courts, as applicable, located in Salt Lake City, Utah.
11.4 Severability. If any term or provision of this Agreement is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, such term or provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
11.5 Assignment. Envoy Partner may not assign this Agreement or any of its rights or obligations hereunder, to a third party without the Curve’ written consent. Any assignment in violation of the foregoing is null and void. Curve may assign this Agreement, in whole or part, without Envoy Partner’s consent. This Agreement inures to the benefit of Curve’ successors and assigns.
11.6 Conflict. To the extent that there is any conflict between or among the terms of the Agreement, the terms shall govern according to the following order of precedence solely to the extent of conflict: 1) the Program Agreement, and 2) the Envoy Terms.
11.7 Waiver. Failure to enforce or a waiver by either Party of one default or breach of the other Party will not be considered to be a waiver of any subsequent default or breach.
11.8 Notices. All notices required or permitted hereunder will be in writing, delivered personally, by email, or by nationally recognized overnight courier (e.g., FedEx) at the Parties’ respective addresses set forth on the Program Agreement. All notices will be deemed effective upon personal delivery, or when received if sent by email or overnight courier.
11.9 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which taken together will constitute one Agreement.
11.10 Force Majeure. Neither Party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or war.
11.11 Construction. Unless otherwise specified herein: (i) the word “including” means “including but not limited to”; and (ii) any reference to days will mean calendar days. All headings are for convenience only.