ATTENTION! THE FOLLOWING TERMS AND CONDITIONS WILL BE LEGALLY BINDING UPON YOU BY CLICKING THE "I AGREE" BUTTON DISPLAYED HEREWITH. YOU SHOULD CAREFULLY READ THE FOLLOWING AGREEMENT BEFORE CLICKING "I AGREE." BY CLICKING "I AGREE" YOU ARE REPRESENTING THAT YOU HAVE AUTHORITY TO ENTER INTO AGREEMENT ON BEHALF OF YOUR COMPANY (OR OTHER LEGAL ENTITY). IF YOU DO NOT HAVE SUCH AUTHORITY OR 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 PARTNER PROGRAM.
This Blackbaud Mutual Referral Partner Agreement ("Agreement") is entered into as of the date that this Agreement is accepted by Blackbaud as set forth below after you (hereafter referred to as “Referral Party” or "Partner") click "I Agree." This Agreement is between Partner and Blackbaud Inc., a Delaware corporation.
BLACKBAUD MUTUAL REFERRAL PARTNER AGREEMENT - TERMS AND CONDITIONS
Blackbaud and Referral Party wish to enter into a referral agreement to promote and market each others products and services, all on the terms and conditions hereinafter set forth.
NOW THEREFORE, the parties agree as follows:
1. Referral Activities.
(a) Appointment. Each Party wishes to refer, promote and market certain of the other Parties products and services, which are set forth on Exhibit A attached hereto. Each Party wishes to engage the other on a non-exclusive basis to provide the customer referral and marketing services set forth in this Agreement, and each Party hereby accepts such engagement.
(b) Services. Each Party agrees to promote and market the other Party products and services as it reasonably determines and/or as described by the tier structure defined herein . Such marketing efforts shall include, without limitation, as appropriate, sharing leads, posting Partner Logo and company/product descriptions, disseminating marketing collateral, conducting sales meetings, conducting informational briefings, making joint sales presentations and product demonstrations, and developing marketing strategies. Any use of the Partner Logo shall be governed by the Blackbaud Partner Logo Guidelines set forth at http://bpn.kintera.org/site/pp.aspx?c=kqLMIYODKnF&b=4485465
(c) Marketing Collateral. Each Party shall be responsible for providing the other Party with marketing collateral (which may include electronic marketing materials and corporate logo, marketing brochures, product lists or demonstration copies of software) concerning its products and services in such quantities as reasonably requested from time to time by such Party for distribution to potential customers and other valid purposes.
(d) Limitations. Each Party is authorized to represent to potential customers only those facts about the other Parties products or services as are stated in current product descriptions and advertising or are delivered in other non-confidential or non-proprietary written material. Neither party is authorized to transfer, sell or license or otherwise assign, or enter into binding agreements for, any of the other party’s products or services. This Agreement is limited to the sharing of leads as described in the agreement. Referral Party is not authorized to market Qualifying Products (or other products or services) on behalf of Blackbaud. Use or distribution of Blackbaud’s marketing materials, conducting sales meetings with respect to Qualifying Products, demonstrating Qualifying Products, making representations about Qualifying Products or the terms and conditions pursuant to which they may be licensed or sold, use of Blackbaud’s logos, trademarks and service marks, or otherwise acting in a marketing or sales capacity on behalf of Blackbaud are all strictly prohibited. Referral Party is not authorized to transfer, sell or license Qualifying Products, or enter into binding agreements on behalf of Blackbaud.
(e) Costs. Each Party will be responsible for its own out-of-pocket expenses (for example, travel expenses, marketing materials and other direct costs) incurred in connection with the marketing and other activities contemplated by this Agreement.
(f) Acceptable Use Policy. Partner agrees to Blackbaud’s Acceptable Use Policy as in effect from time to time and located online at http://www.Blackbaud.com/eua/aupolicy . Partner shall not distribute or otherwise make available Blackbaud products and services to any individual or organization (each an “End User”), unless such End User has entered into a formal agreement with Blackbaud.
(g) Referral Partner Training. Each Party agrees that in order for the Referral Partner to receive the referral fee, the Referral Partner must have completed a one hour on-line seminar to learn about the Blackbaud specific products being referred.
2. Referral Compensation:
(a) Blackbaud Lead Referrals. Blackbaud, in its sole discretion, may provide Partner with potential client opportunities projects (“Blackbaud Lead Referrals”) that have contacted Blackbaud and expressed interest in certain Partner products and services from time-to-time. Blackbaud shall submit any Blackbaud Lead Referrals to Partner using a mutually agreeable lead submittal process. Partner may accept or reject any Blackbaud Lead Referral. Such acceptance shall constitute a “Partner Qualified Lead”.
(b) Partner Lead Referrals Partner, in its sole discretion, may provide Blackbaud with potential client opportunities (“Partner Client Referrals”) that have contacted Partner and expressed interest in Blackbaud products and services from time-to-time. Partner shall submit Blackbaud Partner Client Referrals to Blackbaud using the Lead Activity Form, of which is attached hereto as Exhibit B. Such information may be provided via the Online Form, U.S. mail, email or facsimile. Upon receipt and confirmation of such information contained in the Lead Activity Form, Blackbaud shall have ten (10) business days, in its sole discretion, to accept in writing (via CRM Lead Mgt system, U.S. mail, email or facsimile) the submission of the Lead by the Partner. Such acceptance shall constitute a “Blackbaud Qualified Lead”. In the event Blackbaud fails to accept the Lead submission within the ten (10) business day period or otherwise formally rejects such submission, the submission of the Lead shall be deemed rejected and the Lead shall not constitute a Blackbaud Qualified Lead and Partner shall be entitled to no compensation hereunder.
(c) Blackbaud Referral Fees: In the event a Blackbaud Qualified Lead enters into a binding sales contract with Blackbaud, during the six month period subsequent to the date of the initial Lead Activity Form, for the provision of Blackbaud products or services, Blackbaud shall upon receiving initial payment from the Blackbaud Qualified Lead pay Partner an amount equal to the Blackbaud Referral Percentage as defined in Exhibit A (the “Blackbaud Referral Fee”). The payment of the Blackbaud Referral Fee(s) owed to Partner shall occur on a calendar quarterly basis and be accompanied by a report describing in reasonable detail the calculation of such fee(s).
(d) Partner Referral Fees: In the event a Partner Qualified Lead enters into a binding sales contract with Partner, during the six month period subsequent to the date of the initial Lead Activity Form, for the provision of Partner products or services, Partner shall upon receiving initial payment from the Partner Qualified Lead pay Blackbaud an amount equal to the Partner Referral Percentage as defined in Exhibit A (the “Partner Referral Fee”). The payment of the Partner Referral Fee(s) owed to Blackbaud shall occur on a calendar quarterly basis and be accompanied by a report describing in reasonable detail the calculation of such fee(s).
(e) Refunds. If either Party refunds any payments to a Qualified Lead after payment of a related Referral Fee, the related Referral Fee shall be offset against the Referral Fee for the succeeding quarter.
3. Intellectual Property Rights.
(a) Blackbaud. Except as expressly provided herein, Referral Party acknowledges and agrees that, as between the parties, Blackbaud shall, at all times, exclusively own all right, title, and interest in and to the following (collectively the "Blackbaud Rights"): (i) any marketing collateral supplied by Blackbaud hereunder and (ii) Blackbaud’s logos, trademarks and service marks. Blackbaud hereby grants to Referral Party a limited, non-exclusive, non-transferable, royalty-free, revocable and worldwide license to use, market, promote and display the Blackbaud Rights solely in connection with engaging in the referral activities as set forth in the Agreement. Except for those rights that are expressly granted herein, Referral Party will not grant, nor claim for itself or other affiliated entities, independent contractors or employees, either expressly or implicitly, any other right, title, interest, or license in or to the Blackbaud Rights.
(b) Referral Party. Except as expressly provided herein, Blackbaud acknowledges and agrees that, as between the parties, Referral Party shall, at all times, exclusively own all right, title, and interest in and to the following (collectively the "Referral Party Rights"): (i) any marketing collateral supplied by Referral Party hereunder and (ii) Referral Party’s logos, trademarks and service marks. Referral Party hereby grants to Blackbaud a limited, non-exclusive, non-transferable, royalty-free, revocable and worldwide license to use, market, promote and display the Referral Party Rights solely in connection with engaging in the referral activities as set forth in the Agreement. Except for those rights that are expressly granted herein, Blackbaud will not grant, nor claim for itself or other affiliated entities, independent contractors or employees, either expressly or implicitly, any other right, title, interest, or license in or to the Referral Party Rights.
4. Confidentiality and Non-Disclosure
(a) Definitions. In the performance of this Agreement, either party may disclose to the other certain Confidential Information. For the purposes of this Agreement, “Confidential Information” means information that is of value to its owner and, if in written, graphic or physical form, is appropriately labeled as confidential information of the disclosing party, or if disclosed orally is identified at the time of disclosure as confidential information of the disclosing party. Additionally, Partner hereby acknowledges that all information related to the products, services, tools, know-how, processes, documentation and software used or created by Blackbaud shall, for the purposes of this Agreement, be considered Confidential Information.
(b) Nondisclosure. The receiving party agrees to hold the Confidential Information disclosed by the other party in strictest confidence and not to, directly or indirectly, copy, use, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed, or otherwise transfer the Confidential Information for any purpose whatsoever other than as expressly provided by this Agreement. Both parties acknowledge and agree that the Confidential Information shall remain the sole and exclusive property of the disclosing party or a third party providing such information to the disclosing party. The disclosure of the Confidential Information does not confer upon the receiving party any license, interest, or rights of any kind in or to the Confidential Information, except as expressly provided under this Agreement. The obligations in this Section shall continue indefinitely with regard to all Confidential Information.
(c) Exclusions. Nothing in the immediately preceding paragraph shall prohibit or limit the receiving party’s use of information if (i) at the time of disclosure hereunder such information is generally available to the public; (ii) after disclosure hereunder such information becomes generally available to the public, except through breach of this Agreement by the receiving party; (iii) the receiving party can demonstrate such information was lawfully in its possession prior to the time of disclosure by the disclosing party; (iv) the information becomes available to the receiving party from a third party which is not legally prohibited from disclosing such information; (v) the receiving party can demonstrate the information was developed by or for it independently without the use of such information; or (vi) disclosure is required under applicable law or regulation.
5. Term and Termination.
(a) Acceptance; Term. Blackbaud may, in its sole discretion, accept this Agreement within 10 days following the date that you click "I Agree." If you are accepted as a partner, you will be notified at the email address you provided, otherwise, you will not be eligible to participate in the Blackbaud Partner Program. If Blackbaud does not accept this Agreement in writing by the end of the ten (10) day period, the Agreement is deemed rejected. This Agreement shall commence as of the Effective Date and shall remain in effect for the period as defined on the Partner Application Form, unless earlier terminated as provided herein (the “Initial Term”). The Agreement shall thereafter automatically renew for successive one (1) year periods (each a “Renewal Term”), unless either party sends written notice of non-renewal at least 30 days prior to expiration of the current one (1) year term.
(b) Right to Terminate. Notwithstanding any other provision hereof, this Agreement may be terminated as follows: (i) by either party with 15 day advance written notice; (ii) in the event either party materially breaches any of the provisions hereof, and such breach is not curable, this Agreement shall be immediately terminable by the non-breaching party upon written notice to other party (any violation of the Confidentially and Non-Disclosure provisions hereof shall constitute a non-curable breach); or (iii) immediately by either party in the event that the other party becomes insolvent, files or is forced to file any petition in bankruptcy, or makes an assignment for the benefit of its creditors;
(c) Effect of Termination. Any termination of this Agreement shall not release a party from paying any fees owed to the other party for any periods prior to or after termination. Upon termination of this Agreement for any such reason, all rights granted herein shall immediately cease and Partner shall immediately end all use of the Blackbaud products and services, with the exception of any separately purchased Blackbaud applications. Additionally, Partner shall immediately delete, destroy or return all originals and copies of any Blackbaud Confidential Information, including all documentation, manuals, instructions and other information associated with the products and services, and upon request, provide Blackbaud with certification thereof.
6. Warranties. Each party represents and warrants that (i) it has full power and authority to enter into and perform this Agreement and that such power and authority are not limited or restricted by any agreements or understandings between such party and other persons, (ii) with respect to any services, information or materials provided by a party to the other party hereunder, the party providing such shall have obtained all necessary rights and licenses therefore and (iii) neither the execution, delivery nor performance of this Agreement by a party will result in the breach of any term or provision of any contract, agreement or understanding of such party with any third party. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 6, THE PARTIES MAKE NO FURTHER WARRANTIES AND SPECIFICALLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. Limitation of Liability. EXCEPT FOR PARTNER’S INDEMNIFICATION OBLIGATIONS PURUANT TO SECTION 8 HEREIN, EACH PARTY’S LIABILITY FOR ANY AND ALL CLAIMS ARISING UNDER THIS AGREEMENT, UNDER ANY LEGAL THEORY, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY PARTNER TO BLACKBAUD UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRECEDING THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT, OR SPECULATIVE DAMAGES.
8. Indemnification. Partner indemnifies and holds Blackbaud harmless from and against any lawsuit, claim, damage, liability, or expense (including reasonable attorneys’ fees) incurred by Blackbaud as a result of any third-party claim against Blackbaud pertaining to the content on Partner ’s website, Partner’s unauthorized use or distribution of any of the Blackbaud Rights (which includes Blackbaud software technology), from Partner’s failure to abide by the Blackbaud Acceptable Use Policy, or to any patent, copyright, trademark, or other intellectual property right of any third party that relates to any information provided to Blackbaud by Partner.
9. Miscellaneous Provisions. This Agreement shall be governed, construed and enforced in accordance with the laws of the State of South Carolina without giving effect to the conflict-of-laws principles thereof. Any failure of a party to comply with any obligation, covenant, agreement or condition herein may be expressly waived in writing by the other party, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. Neither party may assign this Agreement in whole or in part without the prior written consent of the other party except no consent shall be necessary in the event of the merger of Blackbaud into another entity or the sale of all or substantially all the assets of Blackbaud. This Agreement does not create any partnership, joint venture, or agency relationship between the parties. Notwithstanding anything herein to the contrary, each party hereto shall be and remain an independent contractor and nothing herein shall be deemed to constitute the parties as partners; neither party will have the authority or hold itself out as having the authority to bind the other. This Agreement is intended as the full expression of the agreement of the parties regarding its subject matter and supercedes all prior agreements between the parties on this subject matter. All notices required or permitted under this Agreement shall be made in writing and shall be deemed to have been duly given if delivered personally or sent by registered or certified mail (return receipt requested), or facsimile with confirmation by U.S. Mail. All notices shall be addressed to the parties at the respective addresses or facsimile numbers indicated below. All provisions of this Agreement, which by their nature are intended to survive the expiration or termination of this Agreement, shall survive and remain in full force and effect. The following sections shall survive termination: 3, 4, 7, 8, and 9.
Exhibit A
PRODUCTS AND SERVICES WITH ASSOCIATED REFERRAL PERCENTAGES
1. Blackbaud Products and Services:
PRODUCT/SERVICE:
- Blackbaud Software Products (ie. RE, FE, eCRM)
- Target Analytics Software and Services except for acquisition lists
- Kintera Sphere Software as a Service
- eTapestry Software as a Service
Blackbaud Referral %*: 10%
*The referral percentage is calculated on the base of Blackbaud’s software subscription fees that (i) are actually collected from the referred customer and (ii) are due and payable during the first 12 months only of the agreement between Blackbaud and the referred customer. There is a maximum referral of $50,000 per deal paid by Blackbaud.
2. Partner Products and Services:
PRODUCT/SERVICE: Partner Product & Services
Partner Referral %*: 10%
*Referrals % is calculated on the base of Partner product and service fees that (i) are actually collected from referred customer and (ii) are due and payable only during the first 12 months of the agreement between Partner and the referred customer
Exhibit B
REFERRAL - LEAD ACTIVITY FORM
Blackbaud Lead Form: For tracking and billing purposes, Blackbaud recommends that all leads be submitted via Lead Form located at http://bpn.kintera.org/site/pp.aspx?c=kqLMIYODKnF&b=4485465
Partner Lead Form: For tracking and billing purposes, Partner will provide process to track leads that are submitted by Blackbaud.
(Revised Oct. 2008)
