This Referral Agreement (“Agreement”) sets forth the terms and conditions pursuant to which an entity may refer to Airbyte, Inc., a Delaware corporation (“Airbyte”), qualifying leads for the sale by Airbyte of the software-as-a-service offering to assist customers to replicate data from multiple sources into datasets within customer data destinations through the use of Airbyte’s Core Tools (“Airbyte Services”). This Agreement constitutes a legal contract between Airbyte and the entity or individual (the “Referral Partner”) submitting a proposed lead or leads for potential registration as a Qualified Referral pursuant to this Agreement. By [submitting a proposed lead and the additional information requested by Airbyte’s lead submission process, or by otherwise acknowledging acceptance of this Agreement in connection with Airbyte’s lead submission process], Referral Partner accepts the terms of this Agreement and represents and warrants that Referral Partner has the legal authority to enter this Agreement. The individual accepting this Agreement on Airbyte’s behalf further represents and warrants that such individual is authorized to bind Referral Partner to this Agreement. In the event Referral Partner and Airbyte have executed or in the future execute a separate written agreement for the payment of referral fees to Referral Partner based on the sale of Airbyte Services subscriptions to leads referred to Airbyte by Referral Partner, such executed agreement shall supersede this Referral Agreement.
1. General Description.
Airbyte agrees to pay Referral Partner a referral fee for submitting Qualified Referrals (as defined below) which result in the sale of Airbyte Services subscriptions to new customers in accordance with the terms set forth in this Agreement.
2. Lead Registration and Acceptance.
2.1 Lead Registration. To create a qualifying lead eligible for a referral fee, Referral Partner must register proposed leads with Airbyte by entering the information necessary to identify the lead (including but not limited to the name of the lead and the main point of contact at the lead) into a webform provided by Airbyte or by sending an email to firstname.lastname@example.org. At Airbyte’s request, Referral Partner shall supply any additional information reasonably requested by Airbyte and/or assist Airbyte in making contact with the proposed lead by arranging an introduction, meeting, conference call or other means of communication with the proposed lead.
2.2 Lead Acceptance. Within a reasonable period of time following Referral Partner’s submission of a proposed lead, Airbyte shall review the proposed lead and provide Referral Partner with a notification of its acceptance of the proposed lead as commissionable, or its rejection of the proposed lead. Upon Airbyte’s written notification of acceptance of a proposed lead, such lead shall be deemed a “Qualified Referral” for which referral fees may be payable contingent on the satisfaction of the applicable requirements set forth in this Agreement. Until notification of Airbyte’s acceptance, no proposed lead will be deemed a Qualified Referral. Airbyte will be under no obligation to accept any proposed lead submitted by Referral Partner and may reject or decline to accept proposed leads for any commercially reasonable reason as determined by Airbyte in its sole discretion, including, without limitation, that:
(i) the proposed lead was an existing customer of Airbyte or of any of its Affiliates (as defined below) at the time of submission of the proposed lead (for purposes of this Agreement, the term "Affiliate" shall mean, with respect to a particular entity, any entity, individual, firm, or corporation, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such entity);
(ii) Airbyte or any of its Affiliates was already involved in discussion with the proposed lead relating to the Airbyte Services at the time of submission;
(iii) the proposed lead has previously been submitted to Airbyte or any of its Affiliates by Referral Partner or by any other third party;
(iv) the proposed lead (a) does not meet Airbyte’s credit requirements, (b) is on a list of restricted or prohibited parties issued by the government of the United States or any other jurisdiction, or (c) is located in a country that is subject to a United States trade embargo or that is deemed a terrorist supporting country by the United States Government; or
(v) the proposed lead is located in an area in which Airbyte or any of its Affiliates has an exclusive arrangement for the sale of Airbyte Services subscriptions or which Airbyte is otherwise prohibited by agreement or law from accepting.
2.3 Referral Partner Obligations. Following acceptance of a Qualified Referral, Referral Partner will be introduced to an Airbyte account executive to engage with the prospect. Referral Partner agrees not to refer a Qualified Referral to any other entity that markets services similar to the Airbyte Services until this Agreement has terminated or expired. Referral Partner represents and warrants that Referral Partner shall (i) obtain and maintain all necessary permissions authorizing its provision of any third-party information transferred or otherwise provided to Airbyte pursuant to this Agreement and (ii) not make any misrepresentation or any misleading statement to any potential lead or Qualified Partner relating to Airbyte, the Airbyte Services or Referral Partner’s activities related to this Agreement.
3.1 Referral Fee. Airbyte will pay Referral Partner a referral fee equal to 10% of the Eligible Fees (as defined below) actually received by Airbyte pursuant to a Qualifying Contract during the first year following the execution of such Qualifying Contract (the “Referral Fee Period”) For purposes of this Agreement, a “Qualifying Contract” means a written agreement between Airbyte and a Qualified Referral for the provision of Airbyte Services that is executed within 180 days of the date of Airbyte’s written acceptance of such Qualified Referral, or for such longer period as may be authorized in writing by Airbyte in its sole discretion pursuant to Section 2.1 above. For avoidance of doubt, only the first agreement between Airbyte and a Qualified Referral meeting the foregoing requirements of a Qualifying Contract shall be deemed a Qualifying Contract for purposes of this Agreement.
3.2 Eligibility. Subject to Section 3.3, “Eligible Fees” means fees actually received by Airbyte as payment for Airbyte Services pursuant to a Qualifying Contract during the applicable Referral Fee Period (net of refunds and any royalty, license, or other 3rd party fees that Airbyte is obligated to pay in connection therewith), provided that, in order for a referral fee to be payable in connection with a Qualified Referral, the proposed lead must have paid Airbyte at least $5,000 (five thousand dollars) in Eligible Fees pursuant to the applicable Qualifying Contract within sixty (60) days of the execution of the Qualifying Contract.
3.3 Exclusions. Fees or other amounts paid to Airbyte for renewals, support, implementation, training or other professional services, or other payments for overages, taxes, penalties or damages, are not Eligible Fees. Airbyte Services shall not include [any products or services offered by Airbyte other than the Airbyte Services, and payments for any such other products or services shall not be included in the calculation of Eligible Fees.
3.4 Payment. Airbyte will remit referral fees within 60 days after the qualifying lead’s payment for the applicable Airbyte Services is received. Referral Partner will be solely responsible for payment of all taxes and other costs levied against the referral fee or its operations. Payment method is determined by Airbyte in its sole discretion based on information provided by Referral Partner.
4. Term and Termination; Post-termination Fees.
This Agreement shall expire in the event Referral Partner has not registered a lead for six consecutive months. Either party may terminate this Referral Agreement with written notice to the other at any time. Unless the termination is for Referral Partner’s breach, the termination or expiration of this Agreement will not affect Airbyte’s obligation to pay referral fees for in connection with fees received for Airbyte Services pursuant to Qualified Contracts entered prior to the termination or expiration date.
5. Confidential Information.
5.1 Protection of Confidential Information. Each party will use a reasonable degree of care to maintain all Confidential Information of the other in trust and confidence and will neither disclose to any third party nor use any Confidential Information of the other for any unauthorized purpose or without the other party's express prior written consent. Each party may only disclose Confidential Information of the other to those of recipient’s employees and representatives on a need-to know basis, and may use such Confidential Information only to the extent required to perform such party’s obligations hereunder. Confidential Information may not be used for any purpose or in any manner that would constitute a violation of any laws or regulations, including, without limitation, the export control laws of the United States. No rights or licenses to intellectual property in Confidential Information or otherwise is granted by either party under this Agreement, whether express, implied or otherwise. All Confidential Information will remain the property of the disclosing party (and its licensors, if any). All Confidential Information disclosed under this Agreement is provided on an “AS IS” basis. The obligations of this Section 5 shall survive for a period of three years following termination of this Agreement. All Confidential Information (including all copies) will be returned immediately to the disclosing party after the receiving party’s need for it has expired, or at any time upon the request of the disclosing party, and in any event, upon termination or expiration of this Agreement.
5.2 Definition. “Confidential Information” means all information disclosed by one party to the other (a) in tangible form and which is marked or otherwise designated as “Confidential” or “Proprietary”; (b) disclosed orally, and summarized in writing and delivered to the other party within 30 days of disclosure; or (c) which by the nature of the information and the circumstances of the disclosure the receiving party should reasonably infer to be confidential or proprietary (such as source code). “Confidential Information” does not include information which: (a) is or becomes generally known through no fault of the receiving party; (b) is known to the receiving party at the time of disclosure, as evidenced by its records; (c) is hereafter furnished to the receiving party by a third party as a matter of right and without restriction on disclosure; (d) is independently developed by the receiving party without any breach of this Agreement; or (e) is in response to a valid order of a court or other governmental body or is otherwise required by law to be disclosed, provided the responding party gives sufficient notice to the other party to enable it to take protective measures.
Referral Partner will defend, indemnify, and hold harmless Airbyte and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “Airbyte Entities”), except to the extent resulting directly from Airbyte’s gross negligence or willful misconduct, from and against any and all claims, liabilities, damages, losses, and expenses, including reasonable attorneys' fees and costs, arising out of or in any way connected with (i) Referral Partner’s violation of this Agreement or any applicable law or regulation; (ii) Referral Partner’s violation of any third-party right, including without limitation any intellectual property right, publicity, confidentiality, property or privacy right; or (iv) any disputes or issues between Referral Partner and any third party arising from Referral Partner’s referral activities under this Agreement, including, without limitation, any false or misleading statements by Referral Partner in connection therewith.
7. Limitation of Liability.
IN NO EVENT WILL AIRBYTE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER LEGAL THEORY, WHETHER OR NOT THE AIRBYTE ENTITIES HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE.
THE AGGREGATE LIABILITY OF THE AIRBYTE ENTITIES TO REFERRAL PARTNER FOR ANY AND ALL CLAIMS ARISING OUT OF RELATING THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE TOTAL AMOUNT ACTUALLY PAID BY AIRBYTE TO REFERRAL PARTNER PURSUANT TO THIS AGREEMENT.
8. Restrictions; Disclaimer.
Except as agreed otherwise among the parties, Airbyte will handle all Airbyte Services sales, provision, billing and collection activities related to its customers, including Qualified Referrals. Referral Partner may not use Airbyte’s marketing materials or trademarks without prior written authorization in each case. The Airbyte Services will be provided to customers solely pursuant to a services agreement between Airbyte and its customers. Referral Partner acknowledges that Referral Partner will not be a party to those agreements, and that Referral Partner will have no claim or cause of action against Airbyte based on any such agreements or the Airbyte Services to be provided thereunder, unless the parties so agree separately and in writing with respect to the applicable Qualified Referral. Under no circumstances shall Airbyte have any obligation to Referral Partner to agree to any particular terms in connection with a sale of the Airbyte Services, or to consummate any transaction with any customer or potential customer, including any Qualified Referral. AIRBYTE MAKES NO REPRESENTATIONS OR WARRANTIES TO REFERRAL PARTNER OR ITS LEADS, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AIRBYTE WILL NOT BE LIABLE FOR ANY SPECIAL OR INCIDENTAL DAMAGES THAT MAY ARISE UNDER THIS AGREEMENT AND IN NO EVENT WILL AIRBYTE’S LIABILITY EXCEED THE AMOUNT OF THE REFERRAL FEE FOR THE QUALIFYING TRANSACTION.
9.1 Entire Agreement; Amendments; Severability. This Agreement is the complete agreement of the parties regarding the subject matter hereof and supersedes all prior and contemporaneous agreements between the parties relating to its subject matter. This Agreement may not be amended except in a writing signed by both parties. The failure to require performance of any provision will not affect a party’s right to require performance at any time thereafter, nor shall a waiver of any breach or default of this Agreement constitute a waiver of any subsequent breach or default or a waiver of the provision itself. If any provision of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.
9.2 Relationship of the Parties; No Third-Party Beneficiaries. The relationship of the parties established by this Agreement is that of independent contractors, and this Agreement does not create any relationship between the parties other than the specific obligations set forth herein. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties, notwithstanding its use of the term “partner.” There are no third-party beneficiaries to this Agreement.
9.3 Notices, Governing Law and Jurisdiction. Any notices required or permitted hereunder will be given to the appropriate party at the address specified below or at such other address as the party specifies in writing. Such notice will be deemed given upon the personal delivery; four days after the date of mailing if sent by certified mail, postage prepaid; or one day after having been sent by either confirmed facsimile or by commercial overnight courier with verification of receipt. The laws of the State of California, excluding its conflicts of law principles, will govern this Agreement. The parties submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the County of San Francisco, California for the purpose of litigating all disputes arising under this Agreement.
9.4 Assignment. This Agreement is binding on the parties hereto and their respective successors and permitted assigns. Airbyte may assign this Agreement in its entirety, without consent, to its successor in connection with a merger, reorganization, or sale of all or substantially all of its assets or equity. Otherwise, neither party may assign, delegate or transfer this Agreement and any assignment or other attempt in violation of this section is void.