VIZRU Partner Program Agreement

Updated: October 20, 2021

PLEASE READ THIS PARTNER PROGRAM AGREEMENT (THIS “AGREEMENT“) CAREFULLY. This Agreement governs your participation in the Partner Program (as defined below) and is an agreement between VIZRU, Inc. (“VIZRU“) and you or the entity you represent (“you" “You“, or “Partner“). This Agreement takes effect when you are accepted into the Partner Program via email confirmation from VIZRU (the “Effective Date“). VIZRU and Partner are sometimes referred to individually as a “Party" and collectively as the “Parties."

You must read, agree with, and accept all of the terms and conditions contained in this Agreement, including our Privacy Policy , Acceptable Use Policy, before you may participate in the Partner Program. For the avoidance of doubt, Privacy Policy, Acceptable Use Policy, form part of this Agreement and are incorporated herein by reference.

BY CLICKING ON THE "SUBMIT" BUTTON WHEN YOU SUBMIT YOUR PARTNER APPLICATION, COMPLETING THE REGISTRATION PROCESS TO BECOME A VIZRU PARTNER, AND/OR PARTICIPATING IN THE PARTNER PROGRAM, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, AND (2) YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE ENTITY YOU REPRESENT AND THAT IS PARTICIPATING IN THE VIZRU PARTNER PROGRAM, AND TO BIND THAT ENTITY TO THIS AGREEMENT. IF YOU DO NOT ACCEPT OR UNDERSTAND THIS AGREEMENT, YOU MAY NOT REGISTER FOR OR PARTICIPATE IN THE VIZRU PARTNER PROGRAM.

1 DEFINITIONS

1.1 “Active Partner" means that you are within good standing with VIZRU and have completed all necessary Partner Program requirements.

1.2 “Confidential Information" means all data and information of a confidential nature of one Party disclosed by such Party to the other Party under this Agreement, as well as information that one Party knows or reasonably should know that the other Party regards as confidential, including business practices, software, technical information, future product/services plans, programming/design techniques or plans, know-how, trade secrets, prospects, customers, end users, suppliers, development plans or projects, and services. Confidential Information may be communicated orally, in writing, or in any other recorded or tangible form.

1.3 “Eligible Referral" means a Sales Lead (a) which, at the time Partner identifies such Sales Lead, is not already an existing customer of VIZRU or was not already involved in preliminary or advanced discussions with VIZRU relating to the sale of VIZRU Products, (b) which has not previously been submitted to VIZRU through a Sales Lead Registration Application by Partner or any other third party, (c) for which VIZRU accepts a Sales Lead Registration Application from Partner as further described in Section 4.4(b) below, and (d) with which VIZRU enters into an agreement (excluding trial agreements) to provide VIZRU Products no later than ninety (90) days after VIZRU’s receipt of a Sales Lead Registration Application for such Eligible Referral from Partner.

1.4 “Intellectual Property Rights" means all intellectual property and proprietary rights now known or hereafter recognized in any jurisdiction, including rights associated with any of the following (i) patents, patent applications, patent disclosures, and inventions and all improvements thereto (whether or not patentable or reduced to practice), (ii) trademarks, service marks, domain names, trade dress, and other indicia of source, together with the goodwill associated therewith, (iii) copyrights, moral rights and works of authorship (whether or not copyrightable), and (iv) trade secrets, know-how, technologies, software, databases, processes,techniques, protocols, methods, formulae, algorithms, layouts, designs, specifications and other Confidential Information.

1.5 “VIZRU Materials" means any collateral materials describing VIZRU Products provided to Partner by VIZRU for use in connection with this Agreement.

1.6“VIZRU Products" means VIZRU’s proprietary customer engagement and management software platform and related services, as further described on VIZRU’s website, www.vizru.com.

1.7 “Partner Portal" means the web-based application vizru-partners.injomo.com where Partner may access and obtain VIZRU Materials and other marketing resources for the VIZRU Products, register Sales Leads by submitting Sales Lead Registration Applications, review its applicable Tier (as defined below) status, and receive other technical details and support related to the VIZRU Products and participation in the Partner Program.

1.8 “Partner Program" means VIZRU’s partner program, as described in this Agreement.

1.9 “Partner" means an individual or entity that has agreed to the terms of this Agreement and participates in the VIZRU Partner Program. The different types of Partner tracks are listed below:

1. “Referral Partner" is an Active Partner who: (i) has been accepted by VIZRU into the Partner Program, (ii) is an influencer, retailer, or brand evangelist, and (ii) performs Referral Services.
2. “System Integrator Partner" is an Active Partner who: (i) has been accepted by VIZRU into the Partner Program, (ii) is an agency, and (iii) performs System Integration Track Services (as defined below).
3. “Strategic Partner" is an Active Partner who: (i) has been accepted by VIZRU into the Partner Program, (ii) is an agency, and (iii) performs Strategic Relations Track Services (as defined below).

1.10 “Referral Services" means the marketing and promotion of VIZRU Products and the referral of leads for the sale of VIZRU Products, as further described in this Agreement.

1.11 “Sales Lead" means a potential or prospective customer for the VIZRU Products that is identified to VIZRU by Partner via a Sales Lead Registration Application submitted through the Partner Portal.

1.12 “Services" mean collectively, the Referral Services, the Advisor Track Services and the Master Track Services

2 PARTNER PROGRAM ACCEPTANCE

2.1 Acceptance. You must complete and submit a Partner Program application to become a Partner. VIZRU will review your application and notify you whether you have been accepted to participate in the Partner Program via email.

2.2 Account. Upon acceptance, you agree to create an account through the Partner Portal (“Account“) and complete any Enrollment Criteria set forth in Section 5.2(a). In registering an Account, you agree to (a) provide true, accurate, current, and complete information as prompted by the registration form (the “Registration Data“); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current, and complete. Any Registration Data submitted related to Partner’s email contact information must be specific to such Partner, and cannot be a generic email address (e.g., [email protected]). You are responsible for all activities that occur under your Account. You may not share your Account or password with anyone, and you agree to (c) notify Company immediately of any unauthorized use of your password or any other breach of security; and (d) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current, or incomplete, or VIZRU has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current, or incomplete, VIZRU has the right to suspend or terminate your Account and refuse any and all current or future participation in the Partner Program. You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself.

3 DESCRIPTION OF SERVICES

3.1 Partner Program Tracks.The Partner Program consists of three different tracks: the Referral Track, the System Integrator (SI) Track and the Strategic Partner Track (each, a “Partner Program Track"). VIZRU shall designate Partner’s applicable Partner Program Track in VIZRU’s notification of acceptance into the Partner Program. Each Partner Program Track, will, at a minimum, include the Referral Services, but may include additional marketing and other related services as specified herein.

1. Referral Track. If Partner is designated as a Referral Partner, Partner shall provide the Referral Services in accordance with this Agreement.
2. System Integrator (SI) Track. If Partner is designated as an SI Partner, Partner shall provide (a) the Referral Services and (b) certain complimentary system integration and marketing services related to the VIZRU Products as may be further described in the Partner Portal, including but not limited to strategy consulting, implementing, planning, coordinating, scheduling, testing, improving and sometimes maintaining a computing operation, brand development, content creation, data migration services and system integration services (collectively, the “ Marketing Services," and together with the Referral Services, the “System Integrator Track Services“).
3. Strategic Partner Track. If Partner is designated as a Strategic Partner, Partner shall provide (a) the Referral Services, (b) certain complimentary system integration and marketing services related to the VIZRU Products as may be further described in the Partner Portal, including but not limited to strategy consulting, implementing, planning, coordinating, scheduling, testing, improving and sometimes maintaining a computing operation, brand development, content creation, data migration services and system integration services (collectively and together with the Referral Services and the System Integrator Track Services). Strategic Partner will be responsible for all functions relating to performance of the Customer Services, and VIZRU shall have no obligation to provide any Customer Services or have any liability under any agreement that Partner may enter into with any VIZRU Customer with respect to the Customer Services.

3.2 Tiers. In addition to the applicable Referral Fees, VIZRU may offer certain benefits to Partner based on the level of Partner’s participation in the applicable Partner Program Track and certain qualifying criteria, as further described in VIZRU’s Partner Program Guide and in the Partner Portal (each such level, a “Tier“). VIZRU may, in its sole discretion, change the benefits available, and qualifying criteria for each Tier upon written notice to Partner. Partner’s Tier shall be reviewed twice a year to determine Tier eligibility, and VIZRU reserves the right to raise or lower Partner’s Tier, and/or add additional Partner Types, Tiers, and Levels, based on the Partner Program requirements.

3.3 Training. Upon reasonable request by Partner, VIZRU will make good faith efforts to provide Partner with (a) sales training focused on the marketing and promotion of VIZRU Products, and (b) in the case of SI and Strategic Partners, training focused on the management and support of VIZRU Customers. In addition, VIZRU may require that Partner participate in mandatory training and certification prior to the commencement of any Services or payment of Fees (as defined below). VIZRU may offer additional training to Partner at different Tiers as more fully described in VIZRU’s Partner Program Guide and in the Partner Portal. VIZRU may change any such training it provides from time to time in its sole discretion.

3.4 Quarterly Meetings. At the request of VIZRU, the Partner agrees to meet, either via teleconference or in person, no less frequently than once every calendar quarter to discuss the status of the relationship contemplated herein.

3.5 Subcontracting. Partner shall not subcontract any of its obligations under this Agreement.

3.6 Competing Products and Business Practices. During the term of this Agreement, Partner shall promptly inform VIZRU of Partner’s promotion, marketing, or distribution of any product or service offering similar functionality to any VIZRU Product; provided, however, that the foregoing shall not limit Partner’s ability to promote, market, or distribute any such products or services. Partner shall (a) conduct its business under this Agreement in a manner that reflects favorably upon VIZRU, VIZRU Products, and VIZRU’s goodwill and reputation, (b) not engage in illegal, deceptive, misleading, or unethical trade practices, and (c) not, and shall not permit any of its subsidiaries or affiliates, or any of its or their respective directors, officers, managers, employees, independent contractors, representatives, or agents to, promise, authorize, or make any payment, or otherwise contribute any item of value, directly or indirectly, to any third party, including any non-U.S. official, in each case, in violation of the Foreign Corrupt Practices Act of 1977, as amended, or any other applicable anti-bribery or anti-corruption law.

4 REFERRAL SERVICES

4.1 Appointment. VIZRU hereby appoints Partner, and Partner hereby accepts such appointment, as VIZRU’s non-exclusive referral partner and provider of Referral Services.

4.2 Scope of Authority. With respect to Referral Services, Partner’s sole authority shall be to (a) market and promote VIZRU Products as set forth in this Agreement, and (b) provide Sales Leads to VIZRU. The Parties agree that VIZRU will directly enter into agreements with VIZRU Customers for the provision of VIZRU Products to such VIZRU Customers.

4.3 Restrictions. Partner shall not (a) sell, resell, distribute, license or sublicense the VIZRU Products directly to any Sales Lead, but will instead refer all Sales Leads to VIZRU; (b) make any statements concerning the VIZRU Products that are false, misleading or inconsistent with the VIZRU Materials or other materials (including price lists) published or otherwise supplied by VIZRU from time to time; (c) make any commitments, warranties or guarantees to Sales Leads with respect to the VIZRU Products, the pricing thereof, or Partner’s relationship with VIZRU; (d) engage in any marketing activities that violate VIZRU’s Partner Search Engine Marketing Guidelines, which can be accessed in the Partner Portal; or (e) distribute any unsolicited bulk emails (spam) mentioning or referring to VIZRU or the VIZRU Products. Partner has no authority to (i) negotiate any contract for or on behalf of VIZRU or (ii) bind VIZRU to any contract, representation or understanding concerning VIZRU or the VIZRU Products, or any other products or services offered by VIZRU that are outside the scope hereof.

4.4 Lead Process.

1. Identification of Sales Leads; Marketing and Promotion. During the term of this Agreement, Partner shall use commercially reasonable efforts to identify specific Sales Leads and market and promote VIZRU Products to actual and potential Sales Leads. In the course of performing its obligations under this Section 4.4(a), Partner may provide actual and potential Sales Leads with the VIZRU Materials as supplied to Partner by VIZRU.
2. Sales Lead Registration. Partner must register the prospective Sales Lead as a lead in the Partner Portal (“Sales Lead Registration Application“). Following the date of Partner’s submission of the Sales Lead Registration Application (the “Sales Lead Submission Date“), VIZRU will review such Sales Lead Registration Application and notify Partner through the Partner Portal or via email whether VIZRU agrees that such Sales Lead qualifies under this Agreement as an Eligible Referral. If VIZRU notifies Partner that such Sales Lead is not an Eligible Referral, Partner will immediately cease all Referral Services with respect to such Sales Lead. If VIZRU notifies Partner that such Sales Lead is an Eligible Referral, at VIZRU’s request, Partner shall discuss each completed Sales Lead Registration Application in reasonable detail with VIZRU and will assist VIZRU in making contact with the Eligible Referral by arranging an introduction, meeting, conference call, or other means of communication between VIZRU and the Eligible Referral.

5 FEES; PAYMENT

5.1 Types of Fees; Payment.

A description of the current percentages and Fees referred to in this Section 5 is available in VIZRU’s Partner Program Guide and will be indicated to in the Referral, SI Partner, and/or Strategic Partner Agreement executed between the Partners and VIZRU. Other payment process details are set forth and described in the Partner Portal. VIZRU reserves the right to revise the percentages and Fees applicable to Partner and any ongoing obligations to pay Fees from time to time, at its sole discretion, upon reasonable prior notice to Partner. Such notice will be provided to Partner via email or in the Partner Portal.

5.2 Requirements for Payment; Forfeiture.

1. In order to receive the applicable Fees under this Agreement, Partner must have: (i) agreed to the terms of this Agreement (generally by submitting a Partner Program application and clicking on the “Submit" button); (ii) completed all information in our account information form (which can be accessed in the Partner Portal); (iii) submitted to VIZRU the necessary tax documents (i.e., a completed Form W-9 for U.S.-based Partners, or Form W-8BEN or W-8BEN-E (for non-U.S. based Partners); and (iv) returned the forms required by (ii) and (iii) above by email to [email protected] (collectively, the “Enrollment Criteria“).
2. Notwithstanding the foregoing or anything to the contrary in this Agreement, if any of the Enrollment Criteria remain outstanding for six (6) months immediately following the date when an applicable Fee is due to Partner, then Partner’s right to receive such applicable Fee will be forever forfeited (each, a “Forfeited Transaction“). VIZRU will have no obligation to pay Partner any Fees associated with a Forfeited Transaction. Once Partner complies with all of the Enrollment Criteria, then you will be eligible to receive the applicable Fees for any Eligible Referrals (excluding any Forfeited Transactions).
3. Notwithstanding the foregoing, in the event that any Referral Fees are conditioned upon an Eligible Referral remaining a VIZRU Customer for a certain period of time, if any such Eligible Referral terminated its engagement and/or cancels its subscription to the VIZRU Products prior to the completion of the applicable time period, Partner shall not be entitled to such Referral Fees.

6 LICENSES AND OWNERSHIP

6.1 VIZRU Marks. Subject to the terms and conditions set forth in this Agreement and solely for the purposes hereof, VIZRU grants to Partner a non-exclusive, revocable, non-transferable license, without right of sublicense, to use the VIZRU trademarks, service marks, and logos set forth in the Partner Portal (the “VIZRU Marks") to perform its obligations under this Agreement. The use of all VIZRU Marks, including placement and sizing, shall be subject to VIZRU’s then-current trademark use guidelines, and can be found in the Partner Portal. Partner shall, upon request by VIZRU, promptly provide VIZRU with samples of all materials that use the VIZRU Marks for VIZRU’s quality control purposes. If, in VIZRU’s discretion, the Partner’s use of the VIZRU Marks does not meet VIZRU’s then-current trademark usage policy, VIZRU may, at its option, require Partner to revise such materials and re-submit them under this Section 6.1 prior to any further display. Except for the right to use the VIZRU Marks set forth above, nothing contained in this Agreement shall be construed to grant to Partner any right, title or interest in or to the VIZRU Marks, and all right, title, and interest in and to the VIZRU Marks shall be retained by VIZRU. Partner acknowledges that VIZRU asserts its exclusive ownership of the VIZRU Marks and the renown of the VIZRU Marks worldwide. Partner shall not take any action inconsistent with such ownership and further agrees to take all actions that VIZRU reasonably requests to establish and preserve its exclusive rights in and to the VIZRU Marks. Partner shall not adopt, use, or attempt to register any trademarks, service marks, or trade names that are confusingly similar to the VIZRU Marks or in such a way as to create combination marks with the VIZRU Marks.

6.2 VIZRU Materials. During the term of this Agreement, VIZRU may make available to Partner certain VIZRU Materials. Subject to the terms and conditions set forth in this Agreement and solely for the purposes hereof, VIZRU grants to Partner a non-exclusive, revocable, non-transferable license, without right of sublicense, to distribute the VIZRU Materials exactly as provided to Partner by VIZRU to perform Partner’s obligations under this Agreement.

6.3 Ownership. As between Partner and VIZRU, VIZRU retains all right, title, and interest in and to (a) the VIZRU Marks, (b) the VIZRU Products, (c) the VIZRU Materials, and (d) all Intellectual Property Rights related to any of the foregoing. There are no implied licenses under this Agreement.

7 REPRESENTATIONS AND WARRANTIES

7.1 Representations and Warranties. Each Party represents and warrants to the other Party that (a) it has the full corporate right, power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and the performance of its obligations hereunder does not and will not conflict with or result in a breach (including with the passage of time) of any other agreement to which it is a party, and (c) this Agreement has been duly executed and delivered by such Party and constitutes the valid and binding agreement of such Party, enforceable against such Party in accordance with its terms.

7.2 General Disclaimers. EACH OF VIZRU AND PARTNER ACKNOWLEDGES AND AGREES THAT, IN ENTERING INTO THIS AGREEMENT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, IT HAS NOT RELIED UPON ANY WARRANTIES, EXPRESS OR IMPLIED, AND THAT NEITHER PARTY HAS MADE ANY REPRESENTATIONS, ASSURANCES, OR PROMISES THAT VIZRU WILL RECEIVE ANY NEW REFERRED CUSTOMERS OR NEW BUSINESS OR THAT PARTNER WILL RECEIVE ANY FEES AS A RESULT OF THIS AGREEMENT. VIZRU DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE VIZRU PRODUCTS, WHICH ARE PROVIDED AS-IS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAWS, INCLUDING WITH RESPECT TO ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.

7.3 Warranties to Third Parties. Except in the course of delivering the VIZRU Materials as specifically permitted in Section 4.4, Partner shall not provide any representations or warranties to any Sales Lead or any other third party with respect to the VIZRU Products.

8 CONFIDENTIALITY

8.1 Confidentiality. Each Party shall maintain in confidence all Confidential Information disclosed to it by the other Party. Neither Party shall use for any purpose outside the scope of this Agreement, or disclose to any third party, such Confidential Information except as expressly authorized by this Agreement. The receiving Party shall not disclose any Confidential Information to any third party, other than to its and its affiliates’ directors, officers, employees, agents, and representatives (collectively, a Party’s “Representatives“) who are required to have such information in connection with the purposes within the scope of this Agreement and who are under confidentiality obligations no less protective of the Confidential Information that as set forth herein. Each Party shall use at least the same standard of care as it uses to protect its own confidential information of a similar nature (and in no event less than reasonable care) to ensure that such Representatives do not disclose or make any unauthorized use of such Confidential Information. A receiving Party shall be responsible for any breach by any of its Representatives of any provision hereof. Each Party shall promptly notify the other upon discovery of any unauthorized use or disclosure of the Confidential Information. Notwithstanding any other provision in this Agreement to the contrary, the obligations set forth in this Section 8 shall survive any termination or expiration of this Agreement for a period of five (5) years thereafter; provided that the receiving Party shall safeguard all Confidential Information that is a trade secret as required by this Agreement in perpetuity or for so long as such information remains a trade secret under applicable law.

8.2 Exceptions. The obligations of confidentiality contained in Section 8.1 shall not apply to the extent that it can be established by the receiving Party by competent proof that such Confidential Information:

1. was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the other Party;
2. was generally available to the public or was otherwise part of the public domain at the time of its disclosure to the other Party;
3. became generally available to the public or otherwise became part of the public domain after its disclosure, other than through any act or omission of the receiving Party in breach of this Agreement;
4. was disclosed to the receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation not to disclose such information to others; or
5. was independently developed by employees and contractors of the receiving Party who had no access to the Confidential Information, as proven by clear and convincing evidence.

8.3 Authorized Disclosure.Notwithstanding any provision to the contrary herein, the receiving Party may disclose Confidential Information to the extent required by law or any governmental authority, provided that such receiving Party shall to the extent practicable use commercially reasonable efforts to assist the disclosing Party in securing confidential treatment of such information required to be disclosed. Prior to disclosing any Confidential Information under this Section 8.3, if legally permissible the receiving Party shall take reasonable steps to give the other Party sufficient notice of the disclosure request in order for such Party to contest the disclosure request.

9 INDEMNITIES

9.1 By VIZRU. VIZRU shall indemnify, defend, and hold Partner harmless from and against any and all liabilities, losses, damages, costs, fees, and expenses (including reasonable attorneys’ fees) arising out of any third-party claims, suits, actions, or proceedings (collectively, “Claims“) based on an allegation that the VIZRU Marks, in the absence of any modifications by Partner thereto, infringes any United States trademark of any third party.

9.2 By Partner. Partner shall indemnify, defend, and hold VIZRU harmless from and against any and all liabilities, losses, damages, costs, fees, and expenses (including reasonable attorneys’ fees) arising out of any Claims related to: (a) Partner’s performance of any Services, or (b) allegations that Partner made a representation or warranty regarding VIZRU or the VIZRU Products that is inconsistent with the VIZRU Materials provided to Partner by VIZRU, or is otherwise unauthorized by VIZRU.

9.3 Indemnification Procedure. An indemnifying Party hereunder shall be liable for any costs and damages to third parties incurred by the other Party which are attributable to any such Claims, provided that such other Party (a) notifies the indemnifying Party promptly in writing of the claim, (b) gives the indemnifying Party the sole authority to defend, compromise or settle the claim, and (c) provides all available information, assistance, and authority at the indemnifying Party’s reasonable request and at the indemnifying Party’s reasonable expense to enable the indemnifying Party to defend, compromise, or settle such claim. An indemnifying Party hereunder shall diligently pursue any defense required to be rendered hereunder, shall keep the indemnified Party informed of all significant developments in any action defended by the indemnified Party, and shall not enter into any settlement affecting the indemnified Party’s interests without the prior consent of the indemnified Party.

10 LIMITATION OF LIABILITY

10.1 EXCEPT IN CONNECTION WITH BREACHES OF CONFIDENTIALITY AND PAYMENTS TO THIRD PARTIES ARISING FROM EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 (A) UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT OR OTHERWISE, SHALL EITHER PARTY, ITS SUCCESSORS OR ASSIGNS, BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE FAILURE, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF ANY CLAIM OR CAUSE UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF PAYMENTS ACTUALLY PAID TO PARTNER UNDER THIS AGREEMENT. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY.

11 TERM and TERMINATION

11.1 Term. The term of this Agreement shall be one (1) year from the Effective Date unless terminated earlier in accordance with the provisions of this Section 11. This Agreement shall renew automatically for additional one (1) 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.

11.2 Termination for Breach. Either Party may terminate this Agreement for cause resulting from the material breach of this Agreement by the other Party by providing the breaching Party written notice of such material breach and the intention to terminate for cause. The Party receiving such notice shall have thirty (30) days to cure such material breach. If at the end of such thirty (30) day period, the breach has not been cured to the reasonable satisfaction of the Party seeking to terminate the Agreement, the Agreement shall terminate.

11.3 Termination for Convenience. Either Party may terminate this Agreement for convenience upon thirty (30) days’ written notice.

11.4 Effect of Termination; Duties of the Parties Upon Termination. Upon any termination or expiration of this Agreement, Partner shall (a) refrain thereafter from representing itself as a promoter or marketer of VIZRU Products, or as a referral partner of VIZRU, (b) immediately cease all use of any VIZRU Marks and VIZRU Materials, and (c) return to VIZRU the VIZRU Materials and all tangible items in Partner’s possession or under its control containing Confidential Information of VIZRU. Upon any termination or expiration of this Agreement, VIZRU shall return to Partner all tangible items in VIZRU’s possession or under its control containing Partner’s Confidential Information. Upon any termination or expiration of this Agreement, all licenses granted under this Agreement shall terminate. The expiration or termination of this Agreement for any reason, except in accordance with Section 11.2 for a material breach by Partner, shall not relieve VIZRU of its obligation to pay Partner the Referral Fees that are payable hereunder with respect to Eligible Referrals that have been accepted by VIZRU prior to such expiration or termination of this Agreement. In the event that VIZRU terminates this Agreement in accordance with Section 11.2 due to material breach by Partner, VIZRU’s sole and exclusive obligation to Partner shall be to pay Partner the Referral Fees that have accrued up to the date of such termination.

11.5 Survival. The following provisions shall survive any expiration or termination of this Agreement: Sections 1 (Definitions), 6.3 (Ownership), 7.2 (General Disclaimers), 8 (Confidentiality), 9 (Indemnities), 10 (Limitation of Liability), 11.4 (Effect of Termination; Duties of the Parties Upon Termination), 11.5 (Survival), and 12 (Miscellaneous).

12 MISCELLANEOUS.

12.1 Relationship of the Parties.The relationship of Partner and VIZRU is that of independent contractors. Regardless of the use of the word “partner" in the title of this Agreement, neither Party is, nor shall be deemed to be, a partner, joint venturer, agent, employee, or legal representative of the other Party for any purpose. Neither Party shall be entitled to enter into any contracts in the name of or on behalf of the other Party, and neither Party shall be entitled to pledge the credit of the other Party in any way or hold itself out as having authority to do so. No Party shall incur any debts or make any commitments for the other, except to the extent, if at all, explicitly provided herein.

12.2 Assignment. Partner shall not assign or transfer this Agreement, in whole or in part, whether by operation of law, change of control, or otherwise, or delegate any of its obligations hereunder, without the prior express written consent of VIZRU. Subject to the foregoing, this Agreement shall be binding upon the successors and permitted assigns of the Parties. Any assignment in violation of the foregoing shall constitute a material breach of this Agreement and shall be null and void.

12.3 Governing Law; Venue. This Agreement is made in accordance with and shall be governed and construed in accordance with the laws of the State of California, other than such laws, rules, regulations, and case law that would result in the application of the laws of a jurisdiction other than the State of California. Each Party irrevocably consents to the exclusive personal jurisdiction of the state or federal courts located in San Jose, California for any matter arising out of or relating to this Agreement. Each Party hereby submits to the jurisdiction of these courts, acknowledges that venue is proper in such courts, agrees to file all pleadings in such courts, and waives any objection to venue there.

12.4 Notices Except as set forth herein, all notices and other communications hereunder shall be delivered by email (i) if to Partner, at the email address provided by Partner it its account in the Partner Portal, and (ii) if to VIZRU, at the following email address: [email protected]. Partner is responsible for providing VIZRU with its most current email address. In the event that the last email address Partner provided to VIZRU is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, VIZRU’s dispatch of the email containing such notice will nonetheless constitute effective notice. Notice shall be deemed to have been duly given on the first business day following successful e-mail transmission to VIZRU.

12.5 Amendment. VIZRU may amend this Agreement from time to time, in which case the new Agreement will supersede prior versions. VIZRU will notify Partner of such changes through a notification via email or within the Partner Portal with directions to the latest version. The updated Agreement will become effective and binding on the next business day after it is posted. When we change this Agreement, the “Last Modified" date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically. VIZRU may require you to provide consent to the updated Agreement in a specified manner before further participation in the Partner Program is permitted. If you do not agree with a modification to this Agreement, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, this Agreement will terminate thirty (30) days after we receive this notice, and our relationship will continue to be governed by the terms and conditions of the version of this Agreement applicable immediately prior to modification for the remainder of the Agreement term. Otherwise, your continued participation in the Partner Program constitutes your acceptance of such change(s).

12.6 Waiver. No provision of the Agreement unless such provision otherwise provides shall be waived by any act, omission, or knowledge of a Party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving Party.

12.7 Severability Whenever possible, each provision of the Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of the Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of the Agreement.

12.8 Construction As used in this Agreement, the singular shall include the plural and vice versa, and the terms “include" and “including" shall be deemed to be immediately followed by the phrase “without limitation." The captions and headings in this Agreement are inserted for convenience and reference only and in no way define or limit the scope or content of this Agreement and shall not affect the interpretation of its provisions.

12.9 Entire Agreement Entire Agreement. The Agreement constitutes and contains the complete, final, and exclusive understanding and agreement of the Parties and cancels and supersedes any and all prior negotiations, correspondence, understandings, and agreements, whether oral or written, between the Parties respecting the subject matter thereof.

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