REFERRAL AGREEMENT

IMPORTANT – PLEASE READ THIS REFERRAL AGREEMENT (this “Agreement”) CAREFULLY BEFORE PARTICIPATING IN THE PROSPECT REFERRAL PROGRAM OF WHATFIX PRIVATE LIMITED (FORMERLY KNOWN AS QUICKO TECHNOSOFT LABS PRIVATE LIMITED) (“Whatfix”).

THIS AGREEMENT GOVERNS ONE PROSPECT REFERRAL THAT PARTNER (AS DEFINED BELOW) MAY SUBMIT TO WHATFIX, UNLESS PARTNER AND WHATFIX HAVE ENTERED INTO A SEPARATE VALID AND ENFORCEABLE AGREEMENT GOVERNING PROSPECT REFERRALS (the “Other Governing Agreement”).  If there is an Other Governing Agreement (e.g., a reseller agreement), the Other Governing Agreement shall control and supersede this Agreement.

IF THERE IS NO OTHER GOVERNING AGREEMENT, BY SUBMITTING A PROSPECT REFERRAL TO WHATFIX, YOU:

• AGREE ON BEHALF OF YOURSELF AND THE ENTITY THAT EMPLOYS OR ENGAGES YOU (“Partner”) THAT THIS AGREEMENT GOVERNS PARTNER’S PARTICIPATION IN WHATFIX’S PROSPECT REFERRAL PROGRAM,
• AGREE THAT THIS AGREEMENT IS ENFORCEABLE AGAINST PARTNER, AND
• REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO MAKE THE ABOVE AGREEMENTS ON BEHALF OF PARTNER.

IF YOU OR PARTNER DO NOT AGREE TO THIS AGREEMENT, THEN DO NOT SUBMIT ANY PROSPECT REFERRAL TO WHATFIX.  IF YOU OR PARTNER DO NOT AGREE TO THIS AGREEMENT, YOU AND PARTNER SHALL NOT HAVE ANY RIGHT TO CLAIM ANY COMPENSATION OR OTHER BENEFITS FOR ANY PROSPECT REFERRAL SUBMITTED TO WHATFIX.

FOR VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, PROSPECT AND WHATFIX AGREE AS FOLLOWS:

1. Referral Program

1.1 Referral Submission.  Partner may refer a Prospect (as defined below) to Whatfix.  Partner will register the lead information for Prospect by submitting a Partner Deal Registration Form accessible through https://whatfix.com/partner-referral/ (the “Referral Notice”).  “Prospect” shall mean a potential customer that has expressed to Partner a genuine interest in obtaining Whatfix’s SaaS digital guidance platform that enables end-user customers to create contextual and interactive guides or flows for providing application support, learning and help content within web applications (the “SaaS Services”) for such potential customer’s own internal business use, and not for resale, distribution, license or offering services to third parties, and that as of Partner’s submission of the Referral Notice, such potential customer (i) is referred by Partner to Whatfix pursuant to this Agreement and Partner is not acting as the distributor or reseller for Prospect, (ii) is not a current customer of Whatfix or any reseller, distributor or agent of Whatfix, (iii) is not in communications, discussions or negotiations with Whatfix or any reseller, distributor or agent of Whatfix for the SaaS Services, (iv) is not the subject of a prior referral under Whatfix’s Referral Program and (v) is not rejected by Whatfix in its discretion for, as examples, failing to meet Whatfix’s credit requirements, being on a government-issued list of restricted or prohibited parties, or being in a territory in which Whatfix has previously granted an exclusive relationship to another channel partner.

1.2 Accepted or Rejected Referral.  Whatfix will accept or reject a Referral Notice via email within three business days of submission of such Referral Notice.  Whatfix generally accepts a Referral Notice that is for a Prospect meeting the qualifications set forth in Section 1.1, and is complete and accurate.  A Referral Notice will be effective upon Whatfix’s acceptance of such Referral Notice to Partner via email.  Once a Referral Notice is accepted by Whatfix, Partner agrees to introduce Whatfix to Prospect within 14 days of Whatfix’s acceptance of such Referral Notice.  Whatfix is responsible for the marketing and sales process with Prospect, and upon request, Partner agrees to reasonably support Whatfix in the marketing and sales of the SaaS Services to Prospect, including arranging meetings or calls with Prospect.  Partner agrees to comply with Whatfix’s Privacy Policy regarding all matters involving privacy of Prospect’s information.  Partner consents for Whatfix, its affiliates and its channel partners to use and share the information of Prospect and Partner provided by Partner.

1.3 Referral Fees.  Subject to Partner’s compliance with this Agreement, Whatfix will pay Partner 10% of the first 12 months of subscription fees (minus taxes, credits, write-offs, refunds, returns or charge backs) actually received from Prospect for the SaaS Services provided under a binding written agreement with such Prospect (a “Customer Agreement”) but excluding fees for professional, support, training or other services (“Referral Fees”), provided that such Prospect has entered into a Customer Agreement within six months following the date the Referral Notice for such Prospect submitted by Partner was accepted by Whatfix.  Whatfix will pay Partner the Referral Fees in U.S. Dollars within 30 days of Whatfix’s actual receipt of payment from Prospect.  Partner agrees to promptly refund Whatfix any overpayments (e.g., due to refunds or returns) and authorizes Whatfix to deduct any overpayments from future payments under the Prospect Referral Program to Partner.  The Referral Fees do not include any taxes, duties, fees or other amounts assessed or imposed by any government authority, and are subject to any tax deductions or withholdings required by applicable law.  Partner is responsible for paying all such taxes, duties, fees or other amounts other than taxes imposed on Whatfix’s income.  Partner will pay or reimburse Whatfix for all such amounts upon demand, or provide evidence of payment or tax exemption.  Whatfix shall have sole discretion to refuse to provide any SaaS Services to Prospect without liability to Partner.

2. Partner Obligations

2.1 Compliance.  Partner hereby represents and warrants that (a) Partner has complied with all applicable privacy laws for obtaining Prospect’s information and providing it to Whatfix, (b) Whatfix, its affiliates and its channel partners are permitted to contact Prospect and share Prospect’s information for sales and marketing of the SaaS Services to Prospect, and (c) Whatfix, its affiliates and its channel partners may disclose that Partner is the origin of the referral to Prospect and to share Partner’s information with Whatfix’s affiliates and channel partners.

2.2 Partner Business Practices.  Partner will (a) conduct business in accordance with the highest business standards, and not engage in any conduct that could reflect adversely upon the SaaS Services, business or goodwill of Whatfix, (b) comply with all applicable laws, rules and regulations, including any applicable anti-corruption and privacy laws, (c) not make any deceptive, misleading or unethical statements with regard to Whatfix and/or the SaaS Services, (d) not make representations, warranties or guarantees of any kind to any person or entity regarding the specifications, functionality, features or capabilities of the SaaS Services that are inconsistent with Whatfix’s published documentation, and (e) not send unsolicited electronic messages to multiple unrelated recipients in promoting the SaaS Services, or otherwise engage in any other form of mass electronic communications prohibited by law in connection with activities contemplated under this Agreement.

2.3 Costs and Expenses.  Each party is responsible for all costs and expenses incurred in the performance of such party’s obligations under this Agreement, except as expressly provided in this Agreement.

3. Confidentiality.  A party (the “Disclosing Party”) may disclose during the Term to the other party (the “Receiving Party”) the Disclosing Party’s confidential information that is marked or identified as confidential or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure (the “Confidential Information”).  All Confidential Information remains the sole and exclusive property of the Disclosing Party.  The Receiving Party agrees to protect and preserve the confidentiality of the Disclosing Party’s Confidential Information from unauthorized disclosure or use with at least the same degree of care that it applies to its own confidential information, but no less than reasonable care, and not to use or disclose to any person or entity any of the Disclosing Party’s Confidential Information except to perform this Agreement.  The Receiving Party’s obligations with respect to any Confidential Information of the Disclosing Party will terminate if the Receiving Party can document that such information (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party free from any obligation of confidence, (b) was disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions, (c) is, or through no fault of the Receiving Party has become, generally available to the public or (d) was independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information.  In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law or a court or other judicial or administrative body, provided that the Receiving Party (to the extent legally permitted) notifies the Disclosing Party of such compelled disclosure promptly and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.  All confidentiality obligations created by this Section shall remain in force and effect for the Term plus two years. 

4. Relationship.  This Agreement is not a commitment by either party to work exclusively with the other party.  Partner’s relationship with Whatfix during the Term is that of an independent contractor.  Nothing in this Agreement shall be deemed to constitute a partnership, joint venture or franchise between the parties.  Partner will not have, and will not represent that it has, any power, right or authority to bind Whatfix, or to assume or create any obligation or responsibility, express or implied, on behalf of Whatfix or in Whatfix’s name.

5. Limitations of Liability.  EXCEPT FOR BREACH OF CONFIDENTIALITY OR PARTNER’S COMPLIANCE WITH APPLICABLE LAWS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.   EXCEPT FOR THE EXCLUSIONS SET FORTH IN THE PRECEDING SENTENCE, WHATFIX’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO $10,000.  No claim against Whatfix may be brought more than one year after the claim has arisen.  The limitations of liability and exclusions of damages in this Section form an essential basis of the bargain between the parties and shall survive and apply even if any remedy specified in this Agreement is found to have failed its essential purpose.

6. Term.  The term of this Agreement (the “Term”) will commence on the date that Partner submits a Referral Notice to Whatfix and shall terminate upon the earlier of (a) the payment of the Referral Fees to Partner for such Referral Notice or (b) the rejection of such Referral Notice by Whatfix.  This Agreement may be terminated by a party upon written notice to the other party (i) if the other party breaches a material term of this Agreement that is uncured within 15 days after delivery of notice of such breach, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors not dismissed within 30 days.  Partner may be entitled to Referral Fees pursuant to this Agreement only on a referral for which a Referral Notice is accepted by Whatfix pursuant to this Agreement prior to this Agreement’s termination date.  Immediately upon termination of this Agreement, each party will promptly return to the other party all of the other party’s Confidential Information.  Sections 2 through 7 will survive the termination of this Agreement.

7. General

7.1 Entire Agreement.  This Agreement is the parties’ entire agreement with respect to its subject matter, and supersedes any prior understandings or agreements regarding such subject matter.  Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived with the written consent of duly authorized representatives of the parties.  Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and permitted assigns any rights or obligations.

7.2 Assignment.  Whatfix may assign or transfer this Agreement, in whole or in part, at any time.  Partner may not assign or transfer this Agreement, or delegate its duties or responsibilities under this Agreement, by business combination, operation of law or otherwise without Whatfix’s prior written consent.  Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and permitted assigns.

7.3 Governing Law; Dispute Resolution.  This Agreement shall be governed by the laws of California, United States.  This Agreement shall not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.  In the event of a dispute regarding this Agreement (a “Dispute”), a party will provide the other party with written notice of the Dispute as soon as practicable, and the parties agree to exercise commercially reasonable efforts to resolve the Dispute amicably through their designated officers.  A Dispute that cannot be resolved within 30 days following the discussions contemplated by the prior sentence will, upon written demand of either party, be resolved exclusively by the U.S. District Court for the Northern District of California or any court of the State of California in Santa Clara County, California, United States having jurisdiction.  Each party shall have the right, at its election, to seek injunctive or other equitable relief from the courts referenced in this Section to enforce this Agreement, which remedy will not be exclusive. If any action is pursued to enforce or obtain compliance with this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs, in addition to any other relief to which such party may be entitled.  THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY.  PARTNER AGREES THAT IT WILL NOT COMMENCE OR PARTICIPATE IN A CLASS ACTION AGAINST WHATFIX.