"Agreement" means this Referral Partner Agreement and all materials referred or linked to in here.
"Arrangement" means a contractual agreement between Theia Marketing and Customer resulting from a Customer Lead Notice under which Theia Marketing provides Services to Customer in exchange for payment of fees.
"Cause" means:
Conduct by either Party or its employees in connection with the Referral Partner Agreement that amounts to fraud, embezzlement, theft, dishonesty, negligence, or willful misconduct;
if the Referral Partner is an individual, the commission by the Referral Partner of a felony or any other crime involving moral turpitude, as reasonably determined by Theia Marketing;
the commission by Referral Partner or its employees of any act or omission that constitutes a violation of any material law, regulation, or ordinance applicable to Referral Partner, Theia Marketing or Lead;
a breach by Referral Partner of any other obligation owed by Referral Partner to Theia Marketing hereunder.
"Company", "We", "Us", "Theia" means Theia Marketing.
"Customer" means the Party, other than Theia Marketing or the Referral Partner, that has entered into an agreement with Theia Marketing, for which the Referral Partner submitted a Customer Lead Notice in accordance with the Referral Partner Agreement.
"Customer Lead" means the Party, other than Theia Marketing or the Referral Partner, that has been submitted to Theia Marketing through the Customer Lead Notice and has been acknowledged and approved by Theia Marketing as a New Customer Lead but has not entered into any agreement with Theia Marketing.
"Customer Lead Notice" means a notice, which may be an email containing the information listed in Exhibit B, that Referral Partner must provide to Theia Marketing in order to refer a potential Customer to Theia Marketing.
"Effective Date" means the date this Agreement is enforceable and active.
"Referral Lead", "Lead" means a potential Customer that has been submitted to Theia Marketing through a Customer Lead Notice.
"Parties" means the Partner and the Company collectively.
"Party" means the Partner and the Company individually.
"Proprietary Information" means information, observations, and data related to the business of the Referral Partner, Theia Marketing, or Lead:
Either Party becomes aware of, through this Agreement or any other Agreement with the other Party;
Which derives value, actual or potential, from not being generally known to or readily ascertainable by other persons; and
Which is the subject of the Referral Partner, Theia Marketing, or Theia Marketing's Client(s) efforts that are reasonable under the circumstances to maintain its secrecy, without limitation:
concerning information which has been reduced to tangible form, marking such information with a legend identifying its confidential or proprietary nature;
concerning any oral presentation or communication, designating such information as confidential; or
Otherwise, treat such information as confidential. Assuming the criteria in clauses i, ii, and iii above are met, "Proprietary Information" includes, but is not limited to, strategic plans, marketing information, customer names and requirements, and employee data.
"New Customer Lead" means Customer Lead that has been submitted via a Customer Lead Notice and is new to Theia Marketing.
"Monies Earned" means money that was billed to the Customer for Services rendered.
"Monies Received" means and amount of money received from the Customer. This may include money received for a prepaid block of time but has yet to be earned by Theia Marketing.
"Referral Commission", "Referral Commissions", "Commission" means the fee or compensation paid to Referral Partner for any Eligible Arrangements entered into between Customer and Theia Marketing.
"Referral Partner", "Partner", "You" means the Party, other than Theia Marketing, entering into this Agreement and is the Party eligible to receive Referral Commissions. The use of the term Partner is for clarity of the document and does not represent a business partnership or ownership in Theia Marketing.
"Services" means any products or services Theia Marketing will provide to the Customer under the Master Services Agreement. The Referral Partner or its Authorized Representative is authorized to generate customer leads in relation to the Services. Services may be changed, discontinued, or added at Theia Marketing's discretion.
software development,
application development,
project management,
database support,
marketing automation,
content writing,
consulting services, and
subject matter expert support.
2. Appointment of Referral Partner
Appointment as Referral Partner Subject to the terms and conditions herein, Theia Marketing appoints Referral Partner as a non-exclusive sales referral representative, solely within the United States and solely for the Services under this Agreement.
Scope of Referral Partners' Authority The Referral Partner or its authorized representative shall introduce Theia Marketing to prospective Customers and perform such other responsibilities as reasonably requested by Theia Marketing, including forwarding sales literature to prospective Customers. But may not conclude any contract or make any representations, warranties, or promises, or take any other action purportedly binding Theia Marketing without Theia Marketing's prior written consent. Theia Marketing will determine, in its sole discretion, whether to conclude an Arrangement with the Customer. Theia Marketing will provide notice to the Referral Partner of any completed Arrangements where Referral Partner is eligible for a Referral Commission in the Referral Commission Statement as outlined in Exhibit A.
Representations by Referral Partner Representative represents and warrants it shall not make any false or misleading representations regarding Theia Marketing or the Services. Furthermore, the Representative shall not make any representations, warranties, or guarantees with respect to the specifications, features, or capabilities of the Services that are inconsistent with Theia Marketing's documentation.
Authorized Representatives The Referral Partner may appoint members of the Partner's company to be authorized representatives. Authorized representatives are not eligible to receive Referral Commissions. Each authorized representative must be a W-2 employee of the Referral Partner.
Non-Compete During the term of this Agreement, the Referral Partner and its representatives agree not to compete with Theia Marketing in relation to the Services for any submitted Customer Lead or solicit any clients of Theia Marketing.
Independent Contractor The relationship of Theia Marketing and Referral Partner and its representatives is that of an independent contractor and nothing herein shall be construed to:
make Representative an agent or employee of Theia Marketing,
give either Party the power to direct and control the day-to-day activities of the other,
constitute the Parties as partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking, or
allow Referral Partner and its representatives to create or assume any obligation on behalf of Theia Marketing for any purpose.
3. Contact information
Any notice required to be given under this Agreement shall be in writing and delivered to the Party at the address provided above, either personally or by Federal Express, UPS, or other courier services with proof of delivery provided. Attempted delivery, which is refused shall be a valid notice under this Agreement. Either Party may change its address at any time, but such change must be in writing and delivered in accordance with the provisions of this paragraph.
4. Notices
All notices required or permitted to be given under this Agreement ("Notices") shall be in writing, reference this Agreement, and be addressed by email: legal@theiamarketing.com, or to such other address that Theia Marketing provides by notice as required by this Section. If a Notice is to be addressed to Representative, it shall be in writing and addressed to the address or email address specified below. All Notices shall be delivered by:
U.S. Mail, return receipt requested,
a nationally recognized overnight delivery service, or
email, read receipt requested.
Notices shall be deemed delivered when received, as evidenced by a proof of delivery receipt. Notwithstanding the foregoing, the Representative agrees to accept Notices delivered by email, whether or not, a return receipt is requested, as long as, the Notices are sent to the email address provided by the Representative below. Representative agrees to notify Theia Marketing of any changes to its email address.
Notice to Representative: Business Name, Business Address Attention: Name, Title, Email Address
5. Compensation
Sole Compensation The Referral Partner and its representative's sole compensation under this Agreement shall be the Referral Commission which shall be paid as set forth in Exhibit A, the Referral Partner Agreement Execution. There are no other representations, oral or written, other than as provided in this Agreement.
Expenses Unless set forth otherwise in Exhibit A, all costs and expenses incurred by Referral Partner and its representatives in performing its obligations hereunder shall be borne solely by Referral Partner and its representative's. All financial and other obligations associated with the Referral Partner and its representative's business are Referral Partner's sole responsibility.
Payment Referral Commissions shall be paid in United States dollars and shall be subject to all applicable taxes and withholdings. The Referral Partner shall be required to complete an IRS Form W-9 and provide that to Theia Marketing prior to any Referral Commissions being paid.
6. Referral Process
Customer Opportunity Notice The Referral Partner or its representative must submit a Customer Lead Notice to Theia Marketing in order to refer to such Customer to Theia Marketing for the purposes of receiving a Referral Commissions. Theia Marketing maintains sole discretion over whether or not to enter into an Arrangement with a Customer referred by the Referral Partner or its authorized representatives. Once the Referral Partner or its authorized representatives submits a Customer Lead Notice to Theia Marketing, the Referral Partner shall permit Theia Marketing to be the sole point of contact for any communications with the Customer in relation to the Services, if so requested by Theia Marketing. The Referral Partner and its authorized representatives may only submit a Customer Lead Notice for a Customer if Referral Partner or its authorized representatives is actively engaging in discussions to promote the Services with such Customer, and such Customer has expressed a firm interest to the Referral Partner of potentially purchasing a Service from Theia Marketing.
Referral Commissions Eligibility The parties agree that no Referral Commissions will be owed to Referral Partner in connection with a Customer if:
The Customer identified on a Customer Lead Notice had already entered into an Arrangement with Theia Marketing prior to Referral Partners submission of the Customer Lead Notice;
The Customer identified on the Customer Lead Notice was already engaged in discussions with Theia Marketing regarding the Services prior to Referral Partner's submission of the Customer Lead Notice;
Theia Marketing does not conclude an Arrangement with the Customer identified on the Customer Lead Notice within three months of the Referral Partners' submission of the Customer Lead Notice; or
The Lead submitted by the Referral Partner already existed in Theia Marketing's Database and has been identified as a sales qualified lead prior to the submission of the Customer Lead Notice.
7. Term and Termination
Term This Agreement shall commence as of the Effective Date and shall continue thereafter until terminated pursuant to this Section. As used in this Agreement, "days" shall mean calendar days unless otherwise indicated herein.
Termination for Convenience Either Party may terminate this Agreement for convenience upon thirty (30) days advance written notice to the other Party.
Termination for Cause Notwithstanding anything above, either Party may terminate this Agreement for cause, effective upon written notice to the Party in default (the "Defaulting Party"), if the Defaulting Party:
Breaches any of the confidentiality obligations owed to the other Party;
Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within ten (10) days after receipt of written notice of such breach, or if such breach is not reasonably curable within ten (10) days, the Defaulting Party has failed to commence and continue to work diligently and in good faith to cure such breach;
Becomes insolvent or admits its inability to pay its debts generally as they become due; or
Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within thirty (30) business days after filing.
Notwithstanding anything to the contrary, Theia Marketing reserves the right to immediately terminate this Agreement if Representative:
Engages in any conduct or activity outside of Representative's Scope of Authority;
Violates or is engaged in any conduct that appears to violate Representative's obligations of non-competition pursuant to this Agreement; or
Is accused or convicted of or pleads guilty to, a crime or act of fraud or moral turpitude.
8. Non-Exclusivity
This is a non-exclusive Agreement. Nothing in this Agreement prevents Theia Marketing from entering into a similar agreement with other parties, including direct competitors of Referral Partner, its affiliates, contractors, or sub-contractors.
9. Monies Earned
Monies Earned or Revenue is the amount invoiced to the Customer and recorded by Theia Marketing as revenue for a given month under the Arrangement. Revenue may be recognized by Theia Marketing on either an accrual or cash basis, in Theia Marketing's sole discretion. Regardless of the manner recognized, the month it is recorded as Theia Marketing Revenue is the month it becomes eligible for Referral Fee payment purposes. Revenue excludes any taxes and pass-through third-party costs. Revenue further excludes any amounts invoiced to a Customer or recorded by Theia Marketing as revenue applicable to any service period beyond the 12-month anniversary of the applicable new Customer Arrangement. For the sake of clarity, if a Customer is invoiced for a three-year term, the applicable Revenue for Referral Fee purposes shall include only a pro-rata amount of fees invoiced pertaining to the Customer's first year of the term.
10. Referral Commissions
Referral Partner will earn a Referral Commission that shall be calculated as a percentage of Revenue on all Eligible Arrangements. The percentage rate for purposes of calculating the Referral Fee is the percentage defined in Exhibit A, of the Revenue of each Arrangement. Referral Fees are calculated after the end of each month. Theia Marketing will pay all Referral Commission owed to Representative in a given quarter and will provide Representative with a detailed calculation of all Referral Commission earned in that quarter ("Referral Commission Statement") by the 15th day of the first month of each quarter, following the end of the prior quarter. Payments to Referral Partner will be made via ACH to the account defined on Exhibit A.
Monies earned in Q1 (January 1 - March 31) are Paid out in April
Monies earned in Q2 (April 1 - June 30) are Paid out in July
Monies earned in Q3 (July 1 - September 30) are Paid out in October
Monies earned in Q4 (October 1 - December 31) are Paid out in January
Referral Commissions are only available if the Customer pays their invoices in a timely manner.
Referral Commissions are only available for the first three-hundred-sixty-five (365) days after the Customer signs up for services with Theia Marketing.
Referral Partner may dispute transactions in a Referral Commission Statement. Such dispute must be delivered in writing to Theia Marketing pursuant to the Agreement within ten (10) days of receipt of the Referral Commission Statement. DISPUTES SUBMITTED AFTER TEN (10) DAYS WILL NOT BE CONSIDERED AND SHALL BE CONSIDERED WAIVED BY THE REFERRAL PARTNER. The dispute notice must include a detailed description of the dispute, including all information and documentation upon which the Referral Partner has based the dispute. Theia Marketing will promptly investigate disputed amounts and work to resolve such disputes in good faith.
11. Referral Commissions Adjustments
Referral Commission will be adjusted to account for any Customer credit or billing adjustments made in Theia Marketing's sole discretion (including, without limitation, refunds and discounts), including any failure on the part of the Customer to pay for fees invoiced by Theia Marketing pertaining to the Services under the Arrangement. Each month, Theia Marketing will review any required adjustments to Customer accounts. If Theia Marketing determines the Referral Commissions paid to the Referral Partner in prior quarters were overstated or understated, a corresponding adjustment will be made to the Referral Commission in the current quarter.
In addition to any other rights Theia Marketing may have to adjust Referral Fees, Theia Marketing reserves the right to correct and recover any Referral Commissions paid in error, made as a result of late, incomplete, or inaccurate information at the time of payment, made as a result of order misrepresentation, billing fraud, or resulting from Customer's failure to remit payment. Theia Marketing reserves the full right and authority to make any adjustments necessary to result in 100% recovery of any incorrect payments or overpayments made to Referral Partner. In the event current earned Referral Commission in the quarter is not sufficient to satisfy the required adjustment amount, the balance of the required adjustment amount will continue to be offset against Referral Commission in subsequent months until the total required adjustment is complete. Referral Partner agrees to such offset(s) and acknowledges that any offset(s) will continue to be applied until Referral Commission paid to Referral Partner is consistent amounts actually received by Theia Marketing from the Customer. Alternatively, Theia Marketing may require Referral Partner to refund the amount of any adjustments, in which case Referral Partner shall repay such amounts to Theia Marketing within 10 days of Theia Marketing's request.
12. Dishonesty
Referral Partner is responsible for representing itself and Theia Marketing in an honest and professional manner in all dealings. Theia Marketing may, in its sole discretion, terminate the Agreement if it becomes aware of Referral Partner's manipulation, fraud, bad faith, or misrepresentation of the Customer Lead Notices or other activity conducted in bad faith in relation to a Customer. Theia Marketing reserves the right, without limitation, to pursue all legal remedies against Referral Partner as it relates to any such conduct. Theia Marketing shall have no obligation to pay any Referral Commissions, related to any otherwise Eligible Arrangements, where Referral Partner is found to be in violation of this Section. Theia Marketing further retains the right to recover any Referral Commissions actually paid to Referral Partner where Referral Partner is found to be in violation of this Section.
13. No Third-Party Beneficiaries
This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
14. Proprietary & Confidentiality
The Parties agree to hold each other's Proprietary and Confidential Information in strict confidence.
Proprietary or Confidential Information shall include, but is not limited to,
written or oral contracts, trade secrets, know-how, business methods, business policies, memoranda, reports, records, notes, computer- retained information,
all quotes or pricing information provided by Theia Marketing to the Partner for reference of available Services,
all information which has been disclosed to Partner by Theia Marketing, Theia Marketing's Client(s), or other third-parties which Theia Marketing is obligated to treat as confidential,
all information that has been disclosed to Theia Marketing by Partner or other third-parties which Partner is obligated to treat as confidential,
information of any affiliates of Theia Marketing, or the Partner, or
financial information.
Further, Proprietary Information expressly includes the existence of this Agreement and the Referral Partner's performance of Services hereunder. the Referral Partner shall not disclose the existence of this Agreement or its performance of the Services to any party whatsoever.
Proprietary or Confidential Information shall not include any information which:
is or becomes generally known to the public by any means other than a breach of the obligations of the receiving Party:
was previously known to the receiving Party or rightly received by the receiving Party from a third-party without restriction on disclosure and without breach of an obligation of confidentiality running either directly or indirectly of the receiving Party;
is independently developed by the receiving Party without use, directly or indirectly, of the Proprietary Information;
has been approved for release to the general public by written authorization of owning Party;
has been furnished to a third party by the owning Party without restriction on the third-party's right to disclose the information;
or is subject to disclosure under a court order or another lawful process.
The Parties agree not to make each other's Proprietary or Confidential Information available in any form to any third-party or to use each other's Proprietary or Confidential Information for any purpose other than as specified in this Agreement. Each Party's proprietary and confidential information shall remain the sole and exclusive property of that Party. The Parties agree that in the event of use or disclosure by the other Party other than as specifically provided for in this Agreement, the non-disclosing Party may be entitled to equitable relief. Notwithstanding termination or expiration of this Agreement, the Parties acknowledge and agree that their obligations of confidentiality with respect to Proprietary or Confidential Information shall continue in effect for a total period of three (3) years from the termination date of service.
All Proprietary Information and all physical embodiments thereof are confidential to and are and will remain the sole and exclusive property of Theia Marketing and its Client(s). In no event will the Referral Partner take any action causing, or fail to take the action necessary to prevent, any Proprietary Information disclosed to or developed by Theia Marketing to lose its confidential character or cease to qualify as Proprietary Information. Each reproduction of any of the Proprietary Information must prominently contain a legend identifying its confidential nature.
The Referral Partner represents and warrants that any information disclosed by Referral Partner and its authorized representatives to Theia Marketing is not confidential or proprietary to the Referral Partner or to any third party. Accordingly, no obligation of any kind is assumed by or to be implied against Theia Marketing or its Client(s) by virtue of any information received, in whatever form or whenever received, from Referral Partner relating to the subject matter hereof.
Upon the request of Theia Marketing, and in any event upon termination of the Agreement between the Referral Partner with Theia Marketing for any reason, Referral Partner will promptly deliver to Theia Marketing all property belonging to Theia Marketing.
The covenants of confidentiality set forth herein will apply to any Proprietary Information disclosed by Theia Marketing or its Client(s) to the Referral Partner either before or after the Effective Date. The obligations of the Parties contained pertaining to Intellectual Property shall survive the termination of this Agreement.
15. Intellectual Property
All rights, title, and interest in each Party's products and services shall at all times remain the exclusive property of the respective Party. All intellectual property rights, including copyrights, patents, patent disclosures, and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other Confidential Information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works, and all other rights (collectively, "Intellectual Property Rights") in each Party's offerings shall remain the exclusive property of the respective Party. No title to any such offerings shall be transferred under this Agreement by a party to the other Party. Neither Party shall remove or alter the copyright, trademark, and proprietary rights notices of the other Party, and each shall prohibit any such removal or alteration by its officers, agents, employees, and contractors from any materials of the other.
16. Publicity
Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement, or otherwise use the other Party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
17. Non-Solicitation
During the term of this Agreement and for ninety (90) days after the termination of this Agreement, the Parties agree not to intentionally or directly solicit either Party's customers, clients, or employees with the intention of enticing the other Party's customers, clients, or employees away from the Party with a prior established relationship. Any violation of this paragraph may be enforced both equitably and by law.
Any Referral Lead, Customer Lead, or Customer submitted by the Referral Partner shall not be bound by any non-solicitation or non-compete clause in any other agreement. By submitting the Lead to Theia Marketing the Referral Partner is forfeiting its ability to enforce any non-compete or non-solicitation clause that may exist in any other agreement between the Referral Partner and Theia Marketing.
18. Information Sharing
The Parties agree that each Party's Proprietary or Confidential Information or Personal Identifying Information may be disclosed to its employees, agents, consultants, and/or contractors, on a need-to-know basis; provided the employee, agent, consultant, and/or contractor shall also be subject to the terms and conditions of this Agreement.
19. Destruction of Information
The Parties agree to destroy all Proprietary or Confidential Information or Personal Identifying Information of the requesting Party, providing the request is submitted by an authorized representative in writing, which includes all copies, backups, and any other form of the information, except for any information required to be kept for legal purposes. Information kept for legal purposes will be stored in an encrypted location accessible only by individuals requiring access to the information for legal purposes, and this information will only be accessed for legal purposes.
20. Due Process
In the event either Party's information is sought through a subpoena or other court process, the recipient shall inform the other Party of the request in a timely manner to permit the Party owning the Proprietary or Confidential Information or Personal Identifying Information to object and, if necessary, seek court intervention to prevent disclosure.
21. Indemnities
Theia Marketing shall indemnify and hold harmless the Referral Partner and its subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees from any and all claims, damages, liabilities, costs, and expenses, including, but not limited to, reasonable attorneys' fees and all related costs and expenses, incurred by the Referral Partner as a result of any claim, judgment, or adjudication against the Referral Partner related to or arising from:
any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material, whether written, graphic, sound, or otherwise, provided by Theia Marketing to the Referral Partner ("Theia Marketing Content"); or
a claim that the Referral Partner's use of Theia Marketing Content infringes on the intellectual property rights of a third party. To qualify for such defense and payment, the Referral Partner must:
give Theia Marketing prompt written notice of a claim; and
allow Theia Marketing to control, and fully cooperate with Theia Marketing in the defense and all related negotiations;
any act or omission of Theia Marketing, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occur in connection with this Agreement;
any unauthorized act or omission of Theia Marketing which may be determined to be binding upon the Referral Partner;
any claim against the Referral Partner by any third-party alleging the Products or any Software infringes the rights of any such third-party;
The negligence, recklessness, or willful misconduct of the Theia Marketing or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives; provided, however, that the foregoing indemnification will not apply to any loss, liability, damage, action, cause of action, cost or expense resulting solely from the negligence, recklessness or willful misconduct of the Referral Partner or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives.
The Referral Partner shall indemnify and hold harmless Theia Marketing and its subsidiaries, affiliates, officers, agents, co-branders or other partners, employees, and Client(s) from any and all claims, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) incurred by Theia Marketing as a result of any claim, judgment, or adjudication against Theia Marketing related to or arising from:
any photographs, illustrations, graphics, audio clips, video clips, text, data or any other information, content, display, or material, whether written, graphic, sound, or otherwise, provided by the Referral Partner to Theia Marketing ("the Referral Partner Content"); or
a claim that Theia Marketing's use of the Referral Partner Content infringes the intellectual property rights of a third party. To qualify for such defense and payment, Theia Marketing must:
give the Referral Partner prompt written notice of a claim; and
allow the Referral Partner to control, and fully cooperate with the Referral Partner in, the defense and all related negotiations;
any act or omission of the Referral Partner, its respective directors, shareholders, affiliates, officers, agents, employees, and permitted successors and assigns that occur in connection with this Agreement;
Any unauthorized act or omission of the Referral Partner which may be determined to be binding upon Theia Marketing.
the breach by the Referral Partner or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives of any part of this Agreement.
Any claim against Theia Marketing by any third-party alleging the Products or any Software infringes the rights of any such third-party.
The negligence, recklessness or willful misconduct of the Referral Partner or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives; provided, however, that the foregoing indemnification will not apply to any loss, liability, damage, action, cause of action, cost or expense resulting solely from the negligence, recklessness or willful misconduct of Theia Marketing or its affiliates and its and their respective shareholders, members, managers, directors, officers, employees, agents, and other representatives.
22. Limited Liability
In no event shall Theia Marketing be liable to the Referral Partner for any indirect, special, exemplary or consequential damages, including any implied warranty of merchantability or fitness for a particular purpose or implied warranties arising from course of dealing or course of performance, lost profits, whether or not foreseeable or alleged to be based on breach of warranty, contract, negligence or strict liability, arising under this Agreement, loss of data, or any performance under this Agreement.
23. Force Majeure
Neither Party will be liable for or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions 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.
24. Assignability
Referral Partner may not assign this Agreement or the rights and obligations hereunder to any third party without the prior express written approval of Theia Marketing.
25. Agreement Binding on Successors
The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors, and assigns.
26. Alterations
No changes or alterations shall be made to the Referral Commission Rate unless they are in writing and signed by properly authorized representatives of both Theia Marketing and an authorized representative of the Referral Partner.
27. Waiver
No benefit or right accruing to either Party under this Agreement shall be waived unless the waiver is in writing and signed by both Parties to this Agreement. The failure of either Party to exercise any of its rights under this Agreement shall in no way constitute a waiver of those rights, nor shall such failure excuse the other Party from any of its obligations under this Agreement.
28. Audit
Theia Marketing shall maintain a true and correct set of records pertaining to the Services performed for the Customer or third-party services provided hereunder, and all transactions related thereto. Theia Marketing agrees to retain all such records for a period of not less than two (2) years from the completion of the Services or third-party services provided. Any authorized representative of Referral Partner may request to audit any time within the two (2) years any and all records pertaining to the Services performed for the Customer or third-party services provided for the Customer to ensure compliance with this Agreement. Referral Partner shall pay all costs of the audit. If an audit is requested within the two (2) years, Theia Marketing shall maintain the records for as long as reasonably required to complete the audit. Referral Partner is not entitled to review Theia Marketing's cost structures, calculations for employees pay, prices charged, or amounts paid to its vendors, profit margins, trade or professional information, drawings, designs, any documents subject to attorney-client or similar privilege, or any other confidential or proprietary information. If such an audit reveals any excessive or shortages in the Referral Commissions paid to the Referral Partner, any shortages or overages against the Referral Partner shall be brought current at the next payout of Referral Commissions.
29. Disputes
The Referral Partner and Theia Marketing agree to make a good-faith effort to resolve any disagreement arising out of, or in connection with, this Agreement through negotiation. Should the Parties fail to resolve any such disagreement within thirty (30) days, any controversy or claim arising out of or relating to this Agreement, including, without limitation, the interpretation or breach thereof, shall be submitted by either Party to arbitration in Elbert County, Colorado and in accordance with the Commercial Arbitration Rules of the American Arbitration Association.
30. Severability
If any provision of this Agreement shall be unlawful, void, or for any reason is unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
31. Titles and Headings
Headings are inserted for the convenience of the Parties only and are not to be considered when interpreting this Agreement.
32. Governing Law
This Agreement will be governed by and construed in accordance with the laws of the State of Colorado.
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