ATTENTION! THIS ORACLE NETSUITE REFERRAL AGREEMENT PROVIDES THE TERMS APPLICABLE TO
ORACLE
NETSUITE’S SUITEREFERRAL PROGRAM. UPON CLICKING THE “I AGREE” BUTTON BELOW, YOU
AGREE THAT UPON
NOTIFICATION TO YOU OF ORACLE’S ACCEPTANCE OF YOUR APPLICATION FOR PARTICIPATION IN
THE ORACLE
NETSUITE SUITEREFERRAL PROGRAM (AS OUTLINED IN SECTION 1), THAT THIS AGREEMENT WILL
BE LEGALLY
BINDING. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON
BEHALF OF YOU
PERSONALLY, IF YOU ARE ENTERING INTO THIS AGREEMENT ON YOUR OWN BEHALF, OR UPON THE
COMPANY OR
OTHER LEGAL ENTITY ON BEHALF OF WHICH YOU ARE ACTING (HEREINAFTER “YOU” OR “YOUR”).
CAREFULLY READ
THIS AGREEMENT BEFORE CLICKING “I AGREE”.
ORACLE NETSUITE REFERRAL AGREEMENT
This Oracle NetSuite Referral Agreement (“Agreement”) is entered into between You
and Oracle America, Inc. (“Oracle”), headquartered at 500 Oracle Parkway Redwood
Shores, CA 94065 and takes effect as set forth in Section 1 below.
1. AGREEMENT SUBJECT TO APPROVAL.
This Agreement is effective upon notification in writing (via e-mail) of Oracle’s
acceptance of Your application for participation
in the Oracle NetSuite Referral Program (“Approval”). The effective date of this
Agreement shall be the date of such Approval
notification (“Effective Date”). Oracle may reject or decline to accept Your
application for any or no reason at its sole discretion.
Oracle may conduct background checks and other screening measures of any sort in
connection with Your application. If Oracle
approves Your application, You may refer sales leads to Oracle during the term and in
accordance with all terms and conditions
of this Agreement, to enable Oracle to solicit orders for the Oracle NetSuite products
and services (“Products”).
2. LIMITATIONS ON ACTIVITIES.
2.1. Limitations on Activities. Your activities under this Referral
Agreement shall be limited as follows:
2.1.1 You shall conduct all of Your business in Your own name and in accordance with
the highest business standards, acting
dutifully, in good faith and in compliance with all applicable laws and the terms of
this Agreement, and not perform any act
which would or might reflect adversely upon the Products or the business, integrity or
goodwill of Oracle.
2.1.2 You shall not be, or purport to be, authorized to legally represent Oracle or
to conduct negotiations on behalf of Oracle.
You shall not have the authority to make any commitments or agreements or incur any
liabilities whatsoever on behalf of Oracle
or register this Agreement under local registered agency law nor shall Oracle be liable
for any acts, omissions to act, contracts,
commitments, promises or representations made by You.
2.1.3 You shall not use any trademarks, names or other identifiers owned or used by
Oracle (“Marks”), except that You may
refer to Oracle and the Products in conversations and written correspondence with
potential customers in the same manner as
Oracle does in its own marketing materials and website. Any use of the Oracle Marks
shall be subject to Oracle’s right to review
and approve or reject in advance of each proposed use of the Oracle Mark, and shall
conform with any trademark usage
guidelines, polices, or requirements provided, from time to time, by Oracle. Oracle is
the sole and exclusive owner of the Oracle
Marks. Upon termination or expiration of this Agreement, You shall immediately cease use
of any and all Oracle Marks.
2.1.4 You shall not make any representations or other statements about Products,
prices or business practices, except that
You shall forward to potential customers (i) unmodified marketing materials provided by
Oracle and (ii) references to Oracle’s
standard conditions of sale, as published by Oracle on its website or otherwise.
2.2 No License. No license is granted under this Agreement to use or access
any Products, any of Oracle’s proprietary
technologies embodied therein, or any data, information or other content provided
thereby.
2.3 IP Rights. All rights, title and interest in and to the Products, Marks
and other Oracle intellectual property (including
without limitation, all IP Rights (as defined in Section 11) therein and all
modifications, extensions, customizations, scripts or
other derivative works of such Intellectual Property provided or developed by Oracle)
are owned exclusively by Oracle or its
licensors. Except for the rights and grant of limited use of the Marks expressly granted
in this Agreement, the rights granted to
You do not convey any rights in the Products, Marks or other Oracle intellectual
property, express or implied, or ownership
therein. Any rights not expressly granted herein by Oracle are reserved by Oracle. You
shall immediately advise Oracle if You
have knowledge of any potential infringement of any of Oracle’s patents, trademarks,
copyrights or other IP Rights.
2.4 Nonexclusive Referral Agreement. Each party acknowledges that this
Agreement does not create an exclusive
agreement between the parties. Each party shall have the right to recommend similar
products and services of third parties and
to work with other parties in connection with the design, sale, installation,
implementation and use of similar services and
products of third parties. Notwithstanding the foregoing, once You establish a
Commissionable Lead (as defined in Section 4)
with Oracle, You will not refer such Commissionable Lead to a competitor of Oracle which
offers a product or service that is
similar or competing with any current or publicly announced Oracle NetSuite offering.
3. REFERRALS.
3.1 Submission of Leads. You shall identify, register, and provide relevant
commercial conditions relating to an
opportunity at a proposed lead (“Proposed Lead”) in a NetSuite Lead Form
(“NLF”), which
is a standard form generated by
Oracle (and available online via a link provided to You by Oracle), or via some other
method at Oracle’s option. Proposed Leads
cannot be located in an Excluded Country. At Oracle’s request in connection with the
Proposed Lead, You agree to (a) supply
any additional information reasonably requested by Oracle, (b) discuss each completed
NLF in reasonable detail with Oracle,
and (c) assist Oracle in making contact with the Proposed Lead by taking reasonable
measures to facilitate an introduction,
meeting, conference call or other means of communication with the Proposed Lead. For the
avoidance of doubt, projects
offered by Public Sector Entities (as defined in Section 11) are not eligible for
participation in the referral program contemplated
as a Proposed Lead, and are not eligible for any payment of commissions or any other
referral fees under this Agreement.
3.2 Acceptance of Leads. Within a reasonable period of time following Your
submission of a NLF, Oracle shall review the
NLF to determine whether to accept the Proposed Lead as commissionable under Section 4.1
below, or reject the Proposed Lead
pursuant to this Section and will provide You with a written (including e-mail)
notification of its acceptance or rejection of a
Proposed Lead (“Referral Confirmation”). Oracle reserves the right to change its
acceptance or rejection of an NLF at any time
if it learns of new or different information relating to the Proposed Lead than what You
submitted in the NLF and for subsequent
noncompliance with the terms of this Agreement. Oracle will be under no obligation to
accept any NLF and may reject or decline
to accept a NLF for any or no reason at its sole discretion, including, without
limitation, because
3.2.1 the Proposed Lead was an existing customer of Oracle’s at the time of
submission of the NLF;
3.2.2 Oracle was already involved in preliminary or advanced discussions relating
to the sale of a subscription to the
Proposed Lead at the time of submission of the NLF;
3.2.3 an NLF (or similar document) has previously been submitted to Oracle by You
or any third party with respect to the
Proposed Lead;
3.2.4 the Proposed Lead (a) does not meet Oracle’s credit requirements, (b) is
directly or indirectly involved in a business or
industry that in Oracle’s sole discretion may not comply with applicable laws , (c) is
on a list of restricted or prohibited parties
issued by the government of the United States or any other jurisdiction, or (d) 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
3.2.5 the Proposed Lead is located in an Excluded Country, or which Oracle is
otherwise prohibited by agreement from
accepting; or
3.2.6 at the time of Your submission of the NLF, Oracle has a lead already recorded
in Oracle’s system of record that has
been active within the last thirty (30) days; or
3.2.7 the Proposed Lead is a Public Sector Entity.
3.3 Pursuit of Leads by Oracle.The method of contacting and following up
with Proposed Leads will be determined in
Oracle’s sole discretion; provided, however, that You shall actively support Oracle in
the sales process with Proposed Leads when
requested by Oracle. Oracle shall have sole discretion to refuse to offer any Products
to any third party without liability to You.
3.4 An opportunity at a Proposed Lead shall remain a Proposed Lead until the
earlier of: (i) the Proposed Lead declines to
work with You or decides to work with a different partner; (ii) the Proposed Lead
declines to work with Oracle; (iii) You withdraw
the applicable NLF; (iv) Oracle learns of new or different information relating to the
Proposed Lead than what You submitted in
the NLF and revokes its acceptance of such NLF; or (v) one year after acceptance of such
NLF, except that such acceptance shall
renew for additional three month periods if: (a) both parties mutually agree to extend
the validity of the accepted NLF; or (b) a
proposal has been submitted to the proposed lead and such proposal is still pending.
4. COMMISSIONS.
4.1 Commissionable Leads. A Proposed Lead qualifies as commissionable
("Commisionable Lead") only if:
4.1.1 You have submitted an NLF for the Proposed Lead in accordance with Section
3.1; and
4.1.2 4.1.2 Oracle has accepted the Proposed Lead as a Commissionable Lead (i.e.,
not rejected the Proposed Lead as set forth in
Section 3.2, or otherwise).
4.2 Commissions and Payment. Subject to Your compliance with all terms and
conditions of this Agreement, Oracle will
pay You commissions equal to ten percent (10%) of Lead Referral Revenue (as defined in
Section 12). Commission payments
(less any applicable withholding taxes or other levies) will be payable on the last day
of the month following the quarter in which
Oracle receives payment of the Lead Referral Revenue
4.3 Reports. Within thirty (30) days after the end of each calendar quarter
during which You have submitted five (5) or
more Commissionable Leads, Oracle will issue quarterly reports to You by mail, e-mail or
through an online system, which will
show the Lead Referral Revenue generated by each Commissionable Lead and the commission
amounts earned by You as a
result. Each report shall be deemed final and accepted by You unless Oracle receives a
detailed written objection within thirty
(30) days of Your receipt of Oracle’s report.
4.4 Modifications. Oracle may modify the NLF submission process and the
percentage amounts and conditions relating
to commissions upon thirty (30) calendar days written notice. Such changes will only
affect NLF’s submitted after such thirty
(30) day period.
4.5 Commissions After Termination. Except in the event of termination for
breach by You, Oracle will continue to pay
You commissions for the duration of the applicable referral payment period in accordance
with Section 4.2 on Lead Referral
Revenue received following termination of the Agreement for Commissionable Leads
accepted prior to such termination, and
Oracle will continue to issue reports in accordance with Section 4.2 through such time.
4.6 No Other Payments. Except as expressly provided in this Section, You are
not entitled to any fees, reimbursements
or other payments. You shall promptly refund to Oracle any overpayments (e.g., Referral
Fees on Lead Referral Revenue that
was reduced due to returns by the customer).
5. TERM AND TERMINATION.
5.1 Term. This Agreement shall commence on the Effective Date and shall
continue in full force and effect unless
terminated as provided herein.
5.2 Termination for Convenience. Either party may terminate this Agreement
for any or no reason upon giving thirty
(30) days written notice to the other party
5.3 Termination for Breach or Insolvency. Either party may, by written
notice to the other party, terminate this
Agreement if the other party (a) is in breach of any material term, condition or
provision of this Agreement, which breach, if
capable of being cured, is not cured within five (5) business days of receipt of a
written request to cure from the other party, or
(b) terminates its business; (c) becomes insolvent, admits in writing its inability to
pay its debts as they mature, makes an
assignment for the benefit of creditors, or becomes subject to direct control of a
trustee, receiver or similar authority, or (d)
becomes subject to bankruptcy or insolvency proceeding under federal or state statutes,
and such proceeding is not terminated
within sixed (60) days of the institution thereof.
5.4 Effect of Termination. Upon termination of this Agreement for any
reason, You shall immediately cease the use of
all Oracle brochures, literature, documentation and other materials within Your control
and shall return such materials to Oracle
within ten (10) business days. Except as provided in Section 4.4, You shall have no
rights or claims against Oracle in connection
with termination, expiration or non-renewal of this Agreement; in particular, without
any limitation, You hereby irrevocably
waive any rights to severance or compensation for lost opportunities or investments to
the maximum extent permissible under
applicable law.
6. INDEMNIFICATION.
You will defend and indemnify Oracle from and against any and all claims,
demands, liabilities, costs, losses, damages and
expenses (including but not limited to, reasonable attorneys’ fees) (collectively,
“Losses”) brought by any third party against
Oracle which arise out of or result from any act, default, misrepresentation or any
omission on Your part (including, without
limitation, negligence and breach of this Agreement), or any of Your agents, employees
or representatives, directly or indirectly
relating to this Agreement, including without limitation any claims relating to
allegations, actions or proceedings for breach of
contract or warranty, regulatory or other legal claims, claims for bodily injury
(including death) and damage to property.
7. LIMITATION OF LIABILITY.
ORACLE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, OR
ANY LOSS OF PROFITS, REVENUE DATA, OR DATA USE. ORACLE’S AGGREGATE LIABILITY FOR ALL
DAMAGES ARISING OUT
OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, SHALL BE
LIMITED TO FIVE
THOUSAND DOLLARS ($5,000).
8. GOVERNING LAW. This Agreement is governed by the substantive and
procedural laws of the State of California and each party agrees to submit
to the exclusive jurisdiction of, and venue in, the courts in San Francisco or Santa
Clara counties in California in any dispute
arising out of or relating to this Agreement. The Uniform Computer Information
Transactions Act does not apply to this
Agreement or to orders placed under it.
9. GENERAL PROVISIONS.
9.1 Relationship of Parties. The parties are independent contractors under
this Agreement and no other relationship is
intended, including, but not limited to, a partnership, franchise, joint venture,
agency, employer/employee, or master/servant
relationship. Neither party shall act in a manner which expresses or implies a
relationship other than that of independent
contractor. Neither party shall have any right or authority to assume or create any
obligations or to make any representations
or warranties on behalf of the other party, whether express or implied, or to bind the
other party in any respect whatsoever. All
financial and other obligations associated with Your business are solely your
responsibility. As an independent contractor, the
mode, manner and method used by You shall be under Your sole control and You shall be
solely responsible for risks incurred
in the operation of Your business and the benefits thereof. You shall bear all of Your
own expenses in connection with the
performance of this Agreement and will not be entitled to reimbursement of any such
expenses by Oracle.
9.2 No Waiver. The failure by either party to enforce any provision of
this Agreement will not constitute a waiver of future
enforcement of that or any other provision. Neither party will be deemed to have waived
any rights or remedies hereunder
unless such waiver is in writing and signed by a duly authorized representative of the
party against which such waiver is asserted
9.3 Severability. If any provision is held by a court of competent
jurisdiction to be contrary to law, such provision shall be
eliminated or limited to the minimum extent necessary so that the Agreement shall
otherwise remain in full force and effect.
9.4 Notices. Any notice required under this Agreement shall be provided to
the other party in writing. If You have a legal
dispute with Oracle or if You wish to provide a notice under the Indemnification Section
of this Agreement, or if You become
subject to insolvency or other similar legal proceedings, You will promptly send written
notice to: Oracle America, Inc., 500
Oracle Parkway Redwood Shores, CA 94065, Attention: General Counsel, Legal Department.
Notices to You shall be provided
by Oracle via mail, fax or e-mail (to the address or number You provide) or by way of a
posting on Oracle NetSuite’s SuiteReferral Program
Website (available under “Partners” at
www.netsuite.com ).
9.5 Assignment. This Agreement shall inure to benefit and bind the parties
hereto, their successors and assigns, but You
may not assign this Agreement without Oracle’s prior written consent.
9.6 Force Majeure. Neither party shall be liable for loss or delay
resulting from any force majeure event, including, but
not limited to, acts of God, fire, natural disaster, terrorism, labor stoppage, war or
military hostilities, criminal acts ofthird parties.
Any payment date shall be extended to the extent of any delay resulting from any force
majeure event.
9.7 Compliance.
9.7.1 You represent and warrant that (a) You will conduct Your business activities in a
legal and ethical manner; (b) You have
submitted and will submit complete and truthful information in connection with your
application and all referrals; (c) You will
submit all filings and obtain any approvals that may be necessary for You to perform
Your obligations under this Agreement,
(d) You will commit no act that would reflect unfavorably on Oracle; (e) You will comply
with all applicable local, state, federal,
and foreign laws, treaties, regulations, and conventions in connection with Your
performance of this Agreement, including
without limitation, privacy, anti-spam, advertising, copyright, trademark and other
intellectual property laws, (f) except if you
are entering this Agreement in your individual capacity, You are duly organized, validly
existing and in good standing under the
laws of the state or country of Your domicile and are in good standing in each other
jurisdiction in which such qualification is
required by law; and (g) You have the power and authority to transact the business You
transact, to execute and deliver this
Agreement, and to perform Your obligations under this Agreement. You acknowledge that
any sums paid to You under this
Agreement are for Your own account and that, except as appropriate to carry out Your
duties set forth herein in a legal manner,
You have no obligation to, and will not, directly or indirectly, give, offer, pay,
promise to pay, or authorize the payment of money
or anything of value to any other person in connection with the performance of Your
referral activities hereunder. In particular,
without limitation, You agree not to take any actions that would cause You or Oracle to
violate the United States Foreign Corrupt
Practices Act or any other anti-bribery law. You further agree not to engage in any form
of money laundering, which involves
disguising, channeling unlawfully obtained money, or transforming such money into
legitimate funds.
9.7.2 Any act, omission, or breach by Your contractors, agents or Affiliates shall be
deemed an action or breach by You and
You waive all of those defenses that You may have as to why You should not be liable for
Your contractors’, agents’ or Affiliates'
acts, omissions and/or noncompliance with this Agreement.
9.7.3 Export. You represent and warrant that: You are not a party with whom
Oracle is prohibited from doing business with
under the U.S. or applicable export control or economic sanctions laws and regulations.
You will refrain from (a) referring
Proposed Leads engaging in export, re-export, transfer, or end-use(s) restricted under
U.S. law, and (b) disclosing any technical
information related to Products to prohibited persons or destinations in violation of
United States law.
9.8 Survival. Upon the termination of this Agreement for any reason, in
addition to the parties’ rights and obligations that
survive as explicitly set forth herein, the parties' rights and obligations under the
following paragraphs shall survive: Sections 2
(“Limitations on Activities”), 4.5 (“Commissions After Termination”), 4.6 (“No Other
Payments”), 5.4 (“Effect of Termination”),
6 (“Indemnification"), 9.7.1 (“Compliance”) and others which by their nature are
intended to survive.
10. Entire Agreement. This Agreement, including all exhibits hereto, constitutes
the entire
agreement between the parties relating to its subject matter
and supersedes all prior or contemporaneous representations, discussions, negotiations,
and agreements, whether written or
oral, relating to its subject matter. Any amendments or renewals to this Agreement shall
be invalid unless made in writing that
is signed by duly authorized representatives of both parties. In the event of any
additional or inconsistent terms contained in
NLFs, Referral Confirmations or other communications, the terms and conditions in this
Agreement shall prevail unless Oracle
specifically identifies the section(s) of this Agreement that Oracle intends to override
in a writing signed by Oracle.
11. DEFINITIONS.
"Commissionable Period" means, in respect of a Commissionable Lead, a
period of one (1) year from Your submission of the
NLF for such Commissionable Lead.
“Excluded Countries” mean any country to which United States law, rule or
regulation prohibits the sale of goods and services,
as such list of countries may be updated from time-to-time.
“Commissionable Product(s)” means the products listed as Commissionable Products on the Oracle NetSuite SuiteReferral
Program page of Oracle’s website, as updated from time to time in Oracle’s sole discretion, or as specified by Oracle in writing.
“IP Rights” means, on a world-wide basis, copyrights, trademark rights,
service marks, logos, patents, rights in trade secrets,
moral rights, rights of publicity, privacy rights, authors’ rights, contract and
licensing rights, goodwill, rights in domain names,
and all other intellectual property rights as may exist now and/or hereafter come into
existence, and all applications,
registrations, renewals and extensions thereof (including continuations in part),
regardless of whether such rights arise under
the laws of any state, country or jurisdiction.
“Lead Referral Revenue” means any payments actually received by Oracle from
a Commissionable Lead for the first year’s fees
under a subscription agreement or other ordering document between Oracle and the
Commissionable Lead entered into during
the Commissionable Period for the Commissionable Lead’s first order of a Commissionable
Product, minus any taxes,
subsequently credited charges, write-offs, refunds or charge backs. For the avoidance of
doubt, Lead Referral Revenue does
not include any amounts received for follow-up orders, additional sales, renewals, or
for products or services that are not
Commissionable Products at the time of the relevant Referral Confirmation, such as
professional services, support services,
training services or third party software products purchased by a Commissionable Lead,
nor does it include amounts that are
owed by the Commissionable Lead but have not actually been received by Oracle.
“Public Sector Entity” means any traditional government agency or ministry,
including national, state, provincial, or local
government organizations, and any of their divisions, departments, agencies, branches,
or ministries, whether executive,
administrative, legislative, or judicial, as well as political parties, political
organizations, and any public foundations, public
organizations, or NGOs, such as the International Red Cross, United Nations and the
World Bank. The term “public sector entity”
also refers to any entity for which any of the following conditions exists: (a) any
government owns 30% or more of the entity;
(b) any government has voting control or the ability to appoint officers or directors;
(c) any government has formally identified
the entity as a government agency or state-owned enterprise; (d) the entity is financed
through government appropriations, tax
revenue, licenses, fees, or royalties; (e) the entity’s profits are paid or go directly
to any government; (f) any government
subsidizes the entity’s costs of providing services; (g) the entity is funded by any
government in the event it fails to “break even;”
(h) any government designates the entity as performing a governmental function or
otherwise clearly recognizes that the entity
is performing a function expressed in any government’s policies; (i) the public
generally perceives the entity to be performing a
governmental function; (j) the entity has a monopoly over the function it carries out,
or exclusive power to administer the
function it carries out; (k) employees of the entity are considered locally to be public
officials or civil servants; or (l) the entity
provides services, which the local government treats as its own, to the public at large.
BY CLICKING “I AGREE” YOU ARE REPRESENTING THAT (1) YOU HAVE SUBMITTED TRUE AND
COMPLETE
INFORMATION IN CONNECTION WITH YOUR APPLICATION AND (2) YOU ARE ENTERING INTO THIS
AGREEMENT ON
YOUR OWN BEHALF OR THAT YOU HAVE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF
YOUR
COMPANY OR OTHER LEGAL ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT WISH TO
ENTER INTO THIS
AGREEMENT ON YOUR OWN BEHALF, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS
CONTAINED
HEREIN, YOU MUST CLICK “I DECLINE” AND YOU WILL NOT BE ELIGIBLE FOR PARTICIPATION IN
THE ORACLE NETSUITE
SUITEREFERRAL PROGRAM
