The following is the list of terms and conditions that apply to all members who sign up to the Zomentum Affiliate Program ("Affiliate") in their role to identify and recommend the use of Our Services to prospective customers. “We”, “Our”, “Us” or related capitalized terms used herein shall refer to Pactora Inc. (DBA Zomentum). Please read these terms and conditions (“Terms”) carefully as they form a contract between You and Us. We reserve the right to amend these Terms from time to time in which case the new terms will supersede the previous versions. We will notify you of changes that may impact this contract 30 days before making the change. These terms and conditions will provide you with all the information You will need to know about Our Affiliate Program.

If You are agreeing to these Terms on behalf of a company, organization or another legal entity (“Entity”), You are agreeing to these Terms for that Entity and representing to Us that You have the authority to bind such Entity to these Terms, in which case the terms, “You,” “Your” or related capitalized terms used herein shall refer to such Entity. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms.

This agreement is effective on the date you indicate acceptance of this Agreement by signing and agreeing to the terms and conditions set forth herein (“Effective Date”).

1. Background

• We are an end-to-end sales platform that empowers the channel community.
• The parties (You and Us) desire to appoint Affiliate as a source for referrals for Our software-as-a-service (“SaaS”) platform that includes without limitation IT Sales funnel management, IT Sales Assessment, IT Sales Analytics, Quoting, IT Proposal Builder, IT vCIO/ QBR (collectively, the “Services”).
  

2. Appointment

You are hereby appointed as a non-exclusive Affiliate for referrals of the Services subject to these Terms and any additional terms that may be notified to You in the future, and You hereby accept such appointment. You shall have the opportunity to independently or in conjunction with Us, to identify Leads or recommend Services to Leads (as defined below), by sharing the link provided to You.

3. Your Responsibilities

You shall:

• not promote our Services on any adult, hate, or other related sites that host content in violation of law;
• not send unsolicited communications, junk email, spam or other forms of duplicative or unsolicited messages to Leads;
  
• not use Our banners or links such as newsgroups, chatrooms, ICQ, message boards, banner networks, hit farms, guest books etc;
  

You represent and warrant to Us that: (a) You have the authority to enter into these Terms, and the rights and license necessary to enter into, and perform Your obligations hereunder; (b) You are not bound by any agreements, including but not limited to nondisclosure agreement, non competition agreement, documents or obligation that may infringe on Your ability or in any manner prevent or restrict You from performing Your obligations under these Terms; (c) You shall comply with all applicable laws relevant to Your duties, obligations and performance under these Terms; (d) You shall perform your referral services in a professional and workmanlike manner; and (e) If requested by Us, You shall enter into such further agreements or terms for referral of the Services.

Violation of any terms set forth herein will lead to automatic termination of your appointment as an Affiliate, and You will be ineligible to receive any future Commissions.

4. Onboarding and other support

As part of onboarding You as an Affiliate and during the Term, We may send You various materials or collaterals about our Services that You may use to promote our Services in accordance with these Terms. In order for You to fulfill Your obligations as an Affiliate, We may also from time to time and at Our sole discretion, conduct various webinars and other training programs as We deem fit, about our Services. You acknowledge and agree that any materials or collaterals provided to You for promoting our Services is provided on an “as is” basis and We make no representation or warranty regarding any such materials or collateral

5. Referrals and Commission

When someone subscribes to Our Services pursuant to Your sales and marketing efforts provided in accordance with these Terms, We shall at our sole discretion determine if such subscriber is a Lead for the purposes of Exhibit A (“Lead”). In any event, a subscriber shall not be considered as a Lead for the purpose of disbursing Commission to You if such subscriber is 1) already Our existing customer or is an affiliate of Our existing customer; or 2) already a recipient of a proposal from Us; or 3) already being actively pursued by Our sales representatives. With respect to each Lead, We will pay You commission as outlined in Exhibit A (the “Commission”) subject to receipt of actual payment from the Referred Customer. A potential customer registered by you, accepted by Pactora Inc (DBA Zomentum), and that enters into an applicable agreement with Pactora Inc (DBA Zomentum) for use of Our Services shall be considered a “Referred Customer”.

No Commission is payable on any maintenance or support related services provided by Us to a Lead. No Commission is payable for any Services subscribed to by You or Your affiliates.

6. Negotiation Rights

All contracts for Services between Us and a Lead will be conducted solely by Us. You agree not to negotiate terms or make commitments on behalf of Us, unless expressly authorized in writing by Us.

7. Intellectual Property Rights

You acknowledge and agree that title to, ownership of and all proprietary rights in and to Our products including Our Services, any custom development services to Our products and all data compiled by the products, or any materials provided for promotion/marketing are reserved to and are Our exclusive property. We maintain and retain all rights, title and interest in and to all Our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights whether registered or not (collectively, “Intellectual Property Rights”). The rights granted to You to use the Marks (as defined below) under these Terms do not convey any additional rights in the Marks, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Marks as expressly stated herein, all rights, title and interest in and to the Marks, including all related Intellectual Property Rights, will remain with and belong exclusively with Us. We authorize You to use Our current trademarks, service marks and trade names (“Marks”) solely in connection with the marketing of the services pursuant to these Terms. You shall submit to Us all representations of the Marks that You intend to use in connection with the referral services, for Our approval of design, color, and other details, at Our sole discretion.

Notwithstanding the preceding, if at any time We request that such use be modified, limited or removed, You will comply. If You, in the course of performing Your referral services hereunder, acquire any goodwill in any of the Marks, all such goodwill will automatically vest in Us and You shall take all such actions or execute any documents necessary to affect such vesting. You shall not contest the validity of any of the Marks or Our exclusive ownership of the Marks. You shall not adopt, use, or register, whether as a corporate name, trademark, service mark or other indication of origin, any of the Marks, or any word or mark confusingly similar to the Marks in any jurisdiction.

You shall not remove or efface any proprietary notices on the services.

8. Indemnity

8.1  We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Marks as permitted hereunder, brought by a third party alleging that the Marks infringes or misappropriates a third party’s valid intellectual property (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Us for such defense, provided that (a) You promptly notifies Us of the threat or notice of such IP Claim; (b) We have or will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Us in connection therewith.

8.2  The provisions of this clause 8.1 state the sole, exclusive and entire liability of Us to You and constitute Your sole remedy with respect to an IP Claim brought by reason of Your access to or use of the Marks.

8.3  You will indemnify and hold Us harmless against any claim brought by a third party against Us, and Our respective affiliates, employees, officers, directors and agents arising from or related to: (a) any breach of these Terms ; (b) any misrepresentation of Us or Our Services by You; (c) any negligence, or fraud, or misconduct by You; (d) any death or bodily injury caused by You.

8.4  Our obligations under clause 8.1 do not apply to any IP Claim or claim based on: (a) a use of other than the version of the Marks in use currently, if the infringement would have been avoided by use of the current version; (b) modification of the Marks by You, but not approved by us; or (c) the combination or use of the Marks with materials not furnished by Us, if such infringement would have been avoided by the use of Our materials alone

9. WARRANTY DISCLAIMER

WE HEREBY DISCLAIM ANY WARRANTIES WITH RESPECT TO THE SERVICES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. YOU SHALL MAKE NO REPRESENTATIONS OR WARRANTY FOR THE SERVICES ON BEHALF OF US.

10. Termination

• The Term of this agreement shall commence on effective date and continue till terminated by either party in accordance with terms and conditions of this agreement.
  

• We have the right to terminate You as an Affiliate by giving You written notice 30 (thirty) days in advance.
• We have the right to terminate You as an Affiliate immediately without any notice and without liability for a breach of these Terms.
• Upon termination (a) any rights granted hereunder shall immediately terminate; (b) all Confidential Information of Us shall be returned to Us.
• We will pay You commission earned for Referred customers through effective date of termination in accordance with terms and conditions set forth herein.
  

11. Confidential Information and Data Privacy

11.1  “Confidential Information” means any information disclosed by either Party to the other Party pursuant to these Terms that is marked “Confidential,” “Proprietary,” or in some similar manner. Each Party shall treat as confidential all Confidential Information of the other Party and shall not use such Confidential Information except to exercise its rights or perform its obligations under these Terms and shall not disclose such Confidential Information to any third party. This paragraph will not apply to any Confidential Information that is generally or previously known and available, in the public domain through no fault of the receiver . The Parties agree that any breach or threatened breach of the provisions set forth in this clause shall cause irreparable harm to the non-breaching party and shall entitle the non-breaching party to injunctive and equitable relief in addition to any other remedies it may have.

11.2  You acknowledge and agree that (i) We, at our sole discretion, have the right to audit You for Your compliance under these Terms and You shall extend full cooperation during such audits; (ii) any information about Us, our customers or our employees, including but not limited to personal data, disclosed by Us to You shall be utilized by You solely for provision of services to Us under these Terms. A breach of clause 11.1 and 11.2 by You shall be deemed a material breach of these Terms and You shall be liable to indemnify Us in accordance with clause 8.3 of these Terms.

11.3  You acknowledge and agree that you shall comply with all applicable privacy laws and have read and agree to Zomentum’s privacy policy at www.zomentum.com/privacy-policy and Zomentum’s ‘Data Protection Agreement’ set forth at www.zomentum.com/dpa, both of which shall be incorporated herein by reference and may be changed from time to time in Zomentum’s sole and absolute discretion.

12. LIMITATION OF LIABILITY

OUR MAXIMUM AGGREGATE LIABILITY UNDER THESE TERMS, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE COMMISSION PAID TO YOU BY US UNDER THESE TERMS IN THE 12 (TWELVE) MONTHS PRECEDING THE CLAIM. EXCEPT FOR YOUR INDEMNITY OBLIGATIONS OR BREACH OF ANY CONFIDENTIALITY OBLIGATIONS SET FORTH IN THESE TERMS, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF THESE TERMS, WHETHER UNDER CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

13. Severability and Waiver

If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by applicable law, and the remaining provisions of these Terms shall remain in effect. Our non- exercise of any right under or provision of these Terms does not constitute a waiver of that right or provision of the Terms.

14. Entire agreement

These Terms constitute the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between the parties, whether written or oral, relating to this subject matter.

15. Miscellaneous

You shall not, directly or indirectly assign all or any of Your rights under these Terms without Our prior written consent. The relationship of Us and You established by these Terms are that of independent contractors. You represent and warrant that You shall comply with all applicable laws in connection with the Affiliate Program.

16. Notices

All notices to be provided by Us to You under these Terms may be delivered in writing (i) by nationally recognized overnight delivery service (“Courier”) or US mail to the contact mailing address provided by You while subscribing to the Affiliate Program; or (ii) electronic mail to the electronic mail address provided by You. Our address for a notice to us in writing by Courier or US Mail is: Pactora Inc (DBA Zomentum) Attn: Chief Executive Officer, 649 Mission Street 5th floor, San Francisco, CA 94105 with a CC to legal@zomentum.com by electronic mail. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, 2 (two) business days after being deposited in the mail or with a Courier as permitted above.

17. Governing law and dispute resolution

These Terms shall be governed by the laws of the State of Delaware without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of Delaware, Sussex County, for the purpose of resolving any dispute relating to these Terms. Any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of these Terms to arbitrate, shall be determined by arbitration in Lewes, Delaware before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.