Referral Agreement

Last Updated: February 20, 2023

Terms and Conditions, Related Agreements, Policies and Referral Source Letter.
1. This OpenMetal, Inc. (“Company”) Referral Agreement, (“Agreement”), as updated from time to time by Company in its sole discretion, is entered into by and between OpenMetal, Inc., a Delaware corporation (“Company”) and the party listed in the applicable Referral Source Letter (“Referral Source”) and is effective on the date the applicable Referral Source Letter is signed by Company (“Effective Date”).
2. This Referral Agreement governs the referral of customers by Referral Source to Company related to the leasing of the hardware, licenses, software and purchased support services and other related products and cloud services (collectively, the “Cloud Services”) by prospective customers that meet Company’s eligibility criteria.
3. Company and Referral Source may individually be referred to as a “Party” or collectively at the “Parties.”
4. This Referral Agreement is subject to Company’s Universal Terms of Use (“UToU”), Acceptable Use Policy (“AUP”), Privacy Policy (“Privacy Policy”), and Data Processing Addendum (“DPA”), all of which are incorporated herein by reference. The UToU, AUP, Privacy Policy and this Referral Agreement shall collectively be referred to as the “Agreements.” In the event of a conflict between the documents that make up the Agreements, the documents will control in the following order (of decreasing precedence): the Data Processing Addendum, the Privacy Policy, AUP, this Referral Agreement and the remainder of the Agreements (excluding the foregoing).
5. The person listed on the signature page of Referral Source Letter (“Signatory”) enters this Referral Agreement on behalf of Referral Source or entity listed in Referral Source Letter (as applicable), and represents and warrants that the Signatory
  1. has full legal authority to enter into the Agreements;
  2. has read and understands the Agreements; and
  3. agrees to be bound by the Agreements.
Obligations.
1. Referral Source agrees from time to time to use reasonable efforts to refer potential customers to Company subject to and upon the terms and conditions contained in this Agreement.
2. In making referrals, Referral Source will submit to Company relevant information in the format requested by Company regarding potential customers desiring to enter into a transaction with Company. Referral Source shall use reasonable efforts to furnish Company with sufficient accurate information about said potential customers together with such other information as Company may reasonably request to consider and process the contract leads.
3. Referral Source acknowledges, understands and agrees Company has no obligation to enter into any transaction with any potential customer referred to Company by Referral Source, unless Company so approves in its sole discretion. Company shall have no liability to Referral Source for Company’s decision to accept, decline or modify the terms of any transaction. Company reserves the right to deal directly with all applicants and prospective customers.
4. Any transactions shall be closed in Company’s name under Company’s approved contract(s).

Term and Termination.
1. Effective Date and Term. This Referral Agreement is effective on the date Company signs the Referral Source Letter (the “Effective Date”) and shall remain in effect for the time period listed in Referral Source Letter, unless earlier terminated as provided herein (the “Term”). Company shall have the option of renewing this Referral Agreement for an additional period (as set forth in the Referral Source Letter) (the “Renewal” Term”) on the same terms and conditions as provided for herein only if Company provides Referral Source with written notice of its intention to renew this Agreement at least thirty (30) days prior to the expiration of the Initial Term or applicable Renewal Term; otherwise this Referral Agreement shall terminate at the end of the Initial Term or applicable Renewal Term.
2. Termination for Breach. To the extent permitted by applicable law, either Party may terminate this Referral Agreement immediately on written notice if
  1. the other party is in material breach of the Agreements and fails to cure that breach within ten (10) business days after receipt of written notice of the breach; or
  2. the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety (90) days.
3. Termination Due to Applicable Law; Violation of Laws. Company may terminate this Referral Agreement immediately on written notice if Company reasonably believes that
  1. Referral Source violated or may violate any applicable law(s); or
  2. Referral Source has violated or caused Company to violate any applicable commercial and public anti-bribery laws (including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977 and the U.K. Bribery Act 2010, that prohibit corrupt offers of anything of value, either directly or indirectly, to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Government officials include: any government employees, candidates for public office, members of royal families, and employees of government-owned or government-controlled companies, public international organizations, and political parties) or applicable export and re-export control laws and regulations, including (i) the Export Administration Regulations maintained by the U.S. Department of Commerce; (ii) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control; and (iii) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State.
4. Effects of Termination.
  1. Upon termination of this Referral Agreement by either Party for any reason, Company shall have the option, in its sole discretion, with respect to any transaction that was submitted prior to termination
    1. to close such transaction and Referral Source shall comply with all of its obligations under this Referral Agreement with respect to such transaction, or
    2. to reject such transaction without any further obligation of Company.
  2. Upon termination of this Referral Agreement by either Party for any reason, Referral Source shall turn over to Company all Referral Source’s files pertaining to its business with Company or containing Company confidential information.
  3. Company’s responsibility for compensation on any transaction referred by Referral Source is contingent on Referral Source’s compliance with these and any other reasonable termination procedures.

Restrictions.
1. During the Initial Term or Renewal Term and for a period of six (6) months thereafter, Referral Source shall not engage in referral, marketing, sales or support of any product or business similar to the Cloud Services, without Company’s consent.
2. During the Initial Term or Renewal Term, Referral Source shall not engage in direct marketing or solicitation of referral candidates simultaneously for Cloud Services and for any products or business offering products similar to the Cloud Services with any other business.

Referral Source Compensation; Disclosure.
1. Company shall pay Referral Source the amount(s) set forth in the applicable Referral Source Letter that result in transactions within a period of six (6) months following the date of such referral.
2. Company shall owe compensation on each transaction only once the pertinent contract has been fully executed and the customer has paid all fees.
3. Company shall not owe compensation on any transaction that Company elects for any reason not to approve or close. If an application for a transaction is later re-submitted after it has been declined, no compensation shall be owing under this Agreement unless the re-submission qualifies as a referral by Referral Source.
4. If required by applicable law, Company shall properly and fully disclose to the customer all compensation that will be charged or earned by Referral Source in connection with the Transaction.
5. In the event that Company receives a referral of any potential customer, has made a marketing presentation to a potential customer, or has commenced contract discussions with any potential customer prior to receipt of a referral of such potential customer from Referral Source, no compensation shall be owing to Referral Source for such referral.
6. In the event that Company encounters multiple competing claims to referral fees as a result of referrals of the same customer from multiple sources, Company reserves the right to split or apportion fees as Company deems equitable.
7. In no event shall Company be liable for compensation for any referral unless Company acknowledges receipt of such referral.

Limitations on Authority. While engaging in any activities, Referral Source is acting solely as an independent contractor. Referral Source shall not represent or imply in any manner that Referral Source or any of its officers or employees are officers or employees of Company. Referral Source shall have no authority to execute any documents of any type on behalf of Company nor shall Referral Source have the authority to make any commitments on behalf of Company. Referral Source is not an affiliate of Company. In all dealings with potential customers, Referral Source shall disclose in an appropriate manner that Referral Source is an independent entity with a contractual affiliation with Company.

Representations and Warranties of Referral Source. Referral Source makes and will be deemed to have made to Company, as of the Effective Date and throughout the Initial Term or Renewal Term, all of the following representations and warranties:
1. This Referral Agreement constitutes a legal obligation of Referral Source, enforceable against Referral Source in accordance with its terms.
2. Referral Source is duly licensed, where required by law, to perform its obligations under this Referral Agreement. Upon request by Company, Referral Source shall deliver to Company copies of all such licenses.
3. There is no suit, action, arbitration, or regulatory investigation pending, or to Referral Source’s knowledge, threatened, against Referral Source which alleges that Referral Source has defrauded or misled any customer, or used unfair or deceptive practices in the conduct of its financing business.
4. All statements, information and documentation submitted by Referral Source to Company in connection with this Referral Agreement are and shall be true, correct and complete in all material respects.
5. Referral Source has received proper authorization from the prospective customer to submit to Company.
6. Referral Source shall not engage in any price negotiations with a potential customer and agrees Company will handle all segments related to pricing of a Transaction, without any interference from Referral Source.

Representations and Warranties of Company. Company makes and will be deemed to have made to Referral Source, as of the date hereof and throughout the Term of this Agreement, all of the following representations and warranties:
1. This Agreement constitutes a legal obligation of Company, enforceable against Company in accordance with its terms.
2. All statements, information and documentation submitted by Company to Referral Source in connection with this Referral Agreement are and will be true, correct and complete in all material respects.

Confidential Information; Privacy.
1. All business information pertaining to the subject of the Agreements provided directly or indirectly by Company to Referral Source in connection herewith, including all information regarding potential customers, referrals or transactions arising out of Referral Source’s activities hereunder, shall be considered the confidential information of Company.
2. Referral Source, its employees and all associated personnel shall protect such information as confidential and not use it or disclose it except as may be reasonable to carry out Referral Source’s responsibilities under the Agreements or as otherwise approved by Company.
3. Confidential information shall not include information that has been or is made publicly available, except if publicly disclosed in violation of the Agreements or information that the receiving Party is already in possession of or develops independently. These confidentiality obligations shall survive the termination of this Agreement.
4. To the extent that customer information received by Referral Source is subject to privacy or data protection policies established by Company or imposed by applicable laws, Referral Source further agrees to comply with such policies. See Privacy Policy and Data Processing Addendum.

Non-Exclusive Agreement. Nothing in this Agreement shall be construed to create an exclusive relationship in any market or geographic area between Company and Referral Source.

Indemnification.
1. Referral Source shall indemnify and hold harmless Company and its successors, and assigns, hereby forever relieve, release, and discharge each other, and their respective successors and assigns, and all of their respective present and former attorneys, accountants, agents, employees, representatives, administrators, insurers, partners, directors, officers, shareholders, attorneys and heirs from and against any and all losses, claims, demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, in which the Indemnified Person may be involved, or threatened to be involved, as a party or otherwise, by reason of (a) Referral Source’s breach of any of its representations or warranties under this Agreement, (b) any claim for compensation, commission or other amounts by any employee, agent, contractor or broker of Referral Source or (c) any breach by Referral Source of its obligations under this Agreement.
2. An Indemnified Person shall not be entitled to indemnification under this Section with respect to any claim, issue or matter in which it has engaged in fraud, willful misconduct, bad faith or gross negligence.
3. As used herein, “Indemnified Person” means Company and each of its subsidiaries, and each of their respective officers, directors, owners, employees, representatives and agents.

General Terms.
1. Independent Contractors. Nothing in this Agreement, and no course of dealing between the Parties, shall be construed to create or imply an employment or agency relationship or a partnership or joint venture relationship between the Parties or between one party and the other party’s employees or agents. Neither Party has the authority to bind the other, to incur any liability or otherwise act on behalf of the other. Each Party shall be solely responsible for payment of its employees’ salaries (including withholding of income taxes and social security), workers compensation, and all other employment benefits.
2. Assignment. Referral Source may not assign or transfer this Referral Agreement, nor any right or interest herein, in whole or in part, without the express written consent of the Company, which consent shall be at Company’s sole discretion. Any assignment without such consent shall be null and void. This Referral Agreement shall be binding upon and inure to the benefit of the Parties hereto, their successors and legal representatives. There are no third-party beneficiaries to this Agreement. Company may assign this ReferralAgreement or the rights and obligations thereunder to any third party without the prior express written approval of Referral Source.
3. Notices. Unless otherwise agreed to by the Parties, all notices shall be deemed effective when received and made in writing by either (i) registered mail, (ii) certified mail, return receipt requested, (iii) overnight mail, (iv) fax with confirmation, or (v) e-mail with confirmation of opening, addressed to the party to be notified at the addresses listed herein or to such other address as such party shall specify by like notice hereunder. Either Party, by written notice to the other pursuant to this section, may change its address or designees for receiving such notices.
4. Force Majeure. Neither party will be liable for, or will be considered to be in breach of or default under this Referral Agreement on account of, any delay or failure to perform as required by this Agreement as a result of war, acts of terrorism, insurrection, strikes, lockout, riots, floods, earthquakes, fires, casualties, acts of God, acts of public enemies, epidemics, quarantine restrictions, governmental restrictions or moratoriums, acts or failures to act of any governmental authority or major utility company, unusually severe weather, material shortages, bankruptcy of contractors, subcontractors or materialmen, failure of the Company to deliver any Unit, governmental regulations or interference or any cause whatsoever that are beyond such party’s reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other party and will use commercially reasonable efforts to minimize the impact of the event. Each Party shall use reasonable efforts to notify the other party of the occurrence of such an event within three (3) business days of its occurrence.
5. Governing Law; Venue; Waiver of Jury Trial. This Referral Agreement shall be governed by the laws of the State of Commonwealth of Virginia without regard to its conflict of laws principles. The Parties hereby agree that any action arising out of this Agreement will be brought solely in either the United States District Court for the Eastern District of Virginia, Norfolk Division, or the Circuit Courts for the City of Virginia Beach, Virginia, where Company operates, and shall be binding upon the parties hereto in the United States and worldwide. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Prior to the filing of any claim or lawsuit with respect to any dispute arising under this Referral Agreement (other than a suit seeking injunctive relief), the aggrieved party will request in writing senior management involvement of the other party in the negotiation of an amicable resolution. The Parties will use their best efforts in good faith to arrange personal meetings and/or telephone conferences as needed and mutually convenient to the management personnel involved within the fifteen (15) day period following the request for dispute resolution negotiations (the “Negotiation Period”), and no lawsuit shall be commenced with respect to the dispute during the Negotiation Period. In the event the Parties are not able to resolve a dispute during the Negotiation Period, then a party may file any lawsuit. THE PARTIES FURTHER AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, TO WAIVE ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM, COUNTERCLAIM OR ACTION ARISING FROM THE TERMS OF THIS AGREEMENT.
6. Attorney’s Fees. If either Party incurs any legal fees associated with the enforcement of this Referral Agreement or any rights under this Referral Agreement, the prevailing party shall be entitled to recover its reasonable attorney’s fees and any court, arbitration, mediation, or other litigation expenses from the other party.
7. Authorized Signatories. It is agreed and warranted by the Parties that the individuals singing this Referral Agreement on behalf of the respective Parties are authorized to execute such an agreement. No further proof of authorization shall be required.
8. Severability. If any provision or portion of this Referral Agreement shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions or portions shall remain in full force and effect.
9. Headings; Construction. The headings and captions appearing in this Referral Agreement have been inserted for the purposes of convenience and ready reference, and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain. This Referral Agreement is the result of negotiations between the Parties. Accordingly, this Referral Agreement shall not be construed more strongly against either Party regardless of which Party is more responsible for its preparation, and any ambiguity that might exist herein shall not be construed against the drafting Party.
10. Cumulative Remedies. The various rights, options, elections, powers, and remedies of the respective parties hereto granted by this Referral Agreement are in addition to any others to which the Parties may be entitled to by law, shall be construed as cumulative, and no one of them is exclusive of any of the others, or of any right of priority allowed by law.
11. Opportunity to Seek Counsel. The Parties acknowledge and represent that each has had the opportunity to obtain advice of legal counsel in evaluating, finalizing and executing this Agreement.
12. Read and Understood. Each Party acknowledges that it has read and understands this Referral Agreement and agrees to be bound by its terms and conditions.
13. Press Releases. Neither Party will make any public statement, press release or other announcement relating to the terms of or existence of this Agreement without the prior written approval of the other Party, except as required by law.
14. Entire Agreement; Waiver. This Referral Agreement is the entire agreement between the Parties with respect to the subject matter and supersedes any prior agreement or communications between the Parties hereto, whether written or oral. The failure of either party to enforce any provision of this Agreement shall not be construed as a waiver or modification of such provision, or impairment of its right to enforce such provision thereafter.