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REFERRAL AGREEMENT

This Referral Agreement (the “Agreement”) is by and between Windfall Data, Inc., a Delaware corporation with its principal offices located at 430 Pacific, San Francisco, CA 94133, USA (“Windfall”) and you (“Referrer”).

WHEREAS, Windfall is in the business of providing consumer financial data and related services to its clients (the “Services”); and

WHEREAS, the parties desire to enter into a referral relationship under which Referrer shall refer potential clients to Windfall in exchange for a Referral Fee (as defined below and provided herein).

NOW THEREFORE, in consideration of the foregoing and of other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:

1. Definitions.

1.1 “Existing Client” means any client or customer to which Windfall has furnished Services within the period of two (2) years prior to the applicable Referral Date of a Referral.

1.2 “Referral” means a reasonably qualified and bona fide client or customer for Services, for which Referrer is directly responsible for soliciting and referring to Windfall by email.

1.3 “Referral Date” means the date of transmission of a Referral by Referrer to Windfall.

2. Referral of Potential Clients or Customers by Referrer.

During the term of this Agreement, Referrer shall undertake commercially reasonable best efforts to send Referrals to Windfall. For each Referral, Referrer will email team@windfalldata.com.

3. Referrals.

3.1 Acceptance.

Windfall may reject any Referral that references any Existing Client or references a company or client that Windfall has commenced discussions with regarding the Services.

3.2 Payment of Referral Fees.

If, within one hundred eighty (180) days of the applicable Referral Date, a Referral enters into an agreement with Windfall for Windfall to provide its Services to such Referral, then Referrer shall be entitled to receive a one-time fee (“Referral Fee”) equal to 10% of the first-year contract value, commencing on the date on which the contract between the Referral and Windfall is signed and ending one year thereafter. Eligibility for a Referral Fee will be dependent upon Windfall’s reasonable and sole determination that, in addition to referring the Referral, the Referrer had a relevant role in the consummation of the agreement with such Referral. Windfall will pay the applicable Referral Fee, if any, to Referrer within sixty (60) days of Windfall’s receipt of the qualifying fees from the corresponding Referral. Notwithstanding anything herein to the contrary, in no event shall Windfall be obligated to pay a Referral Fee for any Referral involving an Existing Client.

3.3 Resolution of Conflicts Regarding Referral Fees.

Windfall shall not be liable for more than a single Referral Fee for each single Referral. If any third party should make a claim for any Referral Fee or part thereof, then the Referral Fee earned for any closing hereunder may be apportioned among the claimants as determined by Windfall in its sole discretion. Windfall shall make a reasonable effort to consult with all relevant parties regarding any apportionment. The decision of Windfall regarding the apportionment of any Referral Fee due and payable hereunder shall be final.

4. Confidential Information.

4.1 Definition of Confidential Information.

The parties anticipate that Windfall may disclose Confidential Information to Referrer. For purposes hereof, “Confidential Information” means business or technical information disclosed by Windfall to Referrer, including, without limitation, information relating to Windfall’s product plans, customers, designs, costs, products and services, pricing, finances, marketing plans, business opportunities, personnel, research and development, that: (i) if disclosed in writing, is marked “confidential” or “proprietary” at the time of such disclosure; (ii) if disclosed orally, is identified as “confidential” or “proprietary” at the time of such disclosure; or (iii) under the circumstances, a person exercising reasonable business judgment would understand to be confidential or proprietary. Without limiting the foregoing, “Confidential Information” includes the terms and conditions of this Agreement.

4.2 Confidentiality Obligations.

Referrer will not use Windfall’s Confidential Information, except as necessary for the performance of this Agreement, and will not disclose such Confidential Information to any third party, except to those of Referrer’s employees and subcontractors that need to know such Confidential Information for the performance of this Agreement, provided that each such employee and subcontractor is subject to a written agreement that includes binding use and disclosure restrictions that are at least as protective as those set forth herein. Referrer will use all reasonable efforts to maintain the confidentiality of Windfall’s Confidential Information in its possession or control, but in no event less than the efforts that it ordinarily uses with respect to its own confidential information of similar nature and importance. The foregoing obligations will not restrict Windfall from disclosing its own Confidential Information or the terms and conditions of this Agreement. The foregoing obligations will not restrict Referrer from disclosing the Confidential Information (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that Referrer gives reasonable notice to Windfall to enable Windfall to contest such order or requirement; (ii) on a confidential basis to Referrer’s legal or professional financial advisors; or (iii) as required under applicable securities regulations. The restrictions set forth in this Section 4 will remain in effect during the term of this Agreement and for a period of three (3) years thereafter.

4.3 Confidentiality Exclusions

The obligations set forth in Section 4 will not apply to any Confidential Information that: (i) is in or enters the public domain without breach of this Agreement by Referrer; (ii) Referrer lawfully receives from a third party without restriction on use or disclosure; or (iii) Referrer knew prior to receiving such information from the disclosing party without breach of a nondisclosure obligation.

5. Marketing Materials.

From time to time, Windfall will provide Referrer with reasonable quantities of the standard marketing, sales and technical literature that Windfall customarily uses to promote its products and services (collectively, “Marketing Materials”). Referrer will use Windfall’s Marketing Materials solely for the purposes of this Agreement. Referrer may not copy, modify, alter, adapt or create derivative works based on Windfall’s Marketing Materials.

6. Publicity and Trademarks.

6.1 Press and other Co-Marketing Activities

Windfall and Referrer may issue a joint press release announcing the parties’ relationship. The timing and content of such press release will be subject to the approval of each party, which approval may not be unreasonably withheld. Except as required by law, neither party will make any public statements, press releases or other public announcements regarding the parties’ relationship without the prior written approval of the other party, which approval may not be unreasonably withheld.

6.2 Trademark license from Windfall.

Subject to the terms and conditions of this Agreement, Windfall hereby grants to Referrer a non-exclusive, non-transferable, royalty-free license, during the term of this Agreement, to use the Windfall trademarks, service marks, and logos (the “Windfall Marks”) solely for the purposes of this Agreement, provided that such use is only of pre-authorized Windfall Marks and in accordance with Windfall’s then-current trademark usage guidelines. Referrer acknowledges and agrees that Windfall owns the Windfall Marks and that any and all goodwill that is created by or that results from Referrer’s use of the Windfall Marks inures solely to the benefit of Windfall. Referrer will not contest or aid in contesting the validity or ownership of any Windfall Mark or take any action in derogation of Windfall’s rights therein, including, without limitation, applying to register any trademark, trade name or other designation that is confusingly similar to any Windfall Mark.

6.3 Trademark license from Referrer.

Subject to the terms and conditions of this Agreement, Referrer hereby grants to Windfall a non-exclusive, non-transferable, royalty-free license, during the term of this Agreement, to use the Referrer trademarks, service marks, and logos (the “Referrer Marks”) solely for the purposes of this Agreement, provided that such use is only of pre-authorized Referrer Marks and in accordance with Referrer’s then-current trademark usage guidelines. Windfall acknowledges and agrees that Referrer owns the Referrer Marks and that any and all goodwill that is created by or that results from Windfall’s use of the Referrer Marks inures solely to the benefit of Referrer. Windfall will not contest or aid in contesting the validity or ownership of any Referrer Mark or take any action in derogation of Referrer’s rights therein, including, without limitation, applying to register any trademark, trade name or other designation that is confusingly similar to any Referrer Mark.

7. Intellectual Property.

Except as set forth in this Agreement or otherwise expressly agreed to in writing by the parties, nothing in this Agreement will be deemed to grant or assign to the either party any ownership rights, license rights, or interests of any kind in the other party’s products, services or technology or in the other party’s intellectual property or proprietary rights. Except as set forth in a Schedule or otherwise expressly agreed to in writing by the parties, each party (the “Creating Party”) will own all right, title and interest in and to all inventions, improvements, products, services, technology, information and materials or work product of any kind (collectively, “Inventions”) that the Creating Party independently creates, developed or prepares during the term of this Agreement, including all worldwide intellectual property and proprietary rights therein, whether or not any such Invention is competes with, is related to, or is compatible with or interoperates with any products, services or technology of the other party.

8. No Exclusivity.

This Agreement shall not be construed to be a commitment by either party to work exclusively with the other party regarding referrals of potential new business or any other business activities.

9. Representations, Warranties and Disclaimer.

9.1 Mutual Representations and Warranties.

Each party represents and warrants that such party has the necessary corporate power and authority to enter into this Agreement, to carry out its obligations hereunder and to grant the rights herein granted.

9.2 Referrer Representations and Warranties.

Referrer represents and warrants that Referrer:

a. Will conduct business in a manner that reflects favorably on Windfall and its products and services;

b. Will make no false or misleading representations with respect to Windfall and its products and services;

c. Will make no representations, warranties or guarantees with respect to the specifications, features or capabilities of Windfall’s products and services that are inconsistent with Windfall’s Marketing Materials;

d. Is not under 18 years of age; and

e. Is a United States citizen or is otherwise legally authorized to perform the work under this Agreement in the United States.

9.3 DISCLAIMER

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9 ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.

10. Indemnity.

Subject to Section 11, Referrer will indemnify, defend and hold Windfall and its affiliates, and their respective officers, directors, employees, consultants and agents harmless from and against all damages, liabilities, costs, charges and expenses, including reasonable attorneys’ fees, awarded in a final judgment against or paid in settlement by Windfall, arising out of or resulting from any third party claim based on a breach or alleged breach by Referrer of any representation or warranty specified in Section 9.
Subject to Section 11, Windfall will indemnify, defend and hold Referrer and its affiliates, and their respective, officers, directors, consultants and agents harmless from and against all damages, liabilities, costs, charges and expenses, including reasonable attorneys’ fees, awarded in a final judgment against or paid in settlement by Referrer arising out of or resulting from any third party claim relating to any breach or alleged breach by Windfall of any representation or warranty specified in Section 9.

11. Indemnity Procedure.

The party seeking indemnification and defense under Section 11, as the case may be (the “Indemnified Party”), will give prompt written notice of any claim to the other party (the “Indemnifying Party”). In addition, the Indemnified Party will allow the Indemnifying Party to direct the defense and settlement of any such claim, with counsel of the Indemnifying Party’s choosing, and will provide the Indemnifying Party, at the Indemnifying Party’s expense, with information and assistance that is reasonably necessary for the defense and settlement of the claim. The Indemnified Party reserves the right to retain counsel, at the Indemnified Party’s sole expense, to participate in the defense of any such claim. The Indemnifying Party may not settle any claim without the Indemnified Party’s prior written consent, if the settlement terms would adversely affect the Indemnified Party or its rights under this Agreement.

12. Limitation of Liability.

WINDFALL’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE REFERRAL FEES PAYABLE BY WINDFALL HEREUNDER. NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR TO ANY OTHER PERSON FOR ANY INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES, OF ANY CHARACTER, WHETHER IN AN ACTION IN CONTRACT, TORT, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE PARTY CAUSING THE DAMAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES OR COUNTRIES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO THE FULL EXTENT AS ABOVE INDICATED.

13. Term of Agreement; Survival

The initial term of this Agreement shall commence as of the date that Referrer checks all boxes below agreeing to the terms of this Agreement and shall continue for a period of one (1) year, after which this Agreement shall continue automatically from month-to month, unless terminated as provided herein. Notwithstanding the forgoing, either party may terminate this Agreement at any time and for any reason (or no reason) by providing thirty (30) days’ advance written notice to the other party. The obligations contained in Sections 3.2, 3.3, 4, 5, 6, 7, 10, 11, 12 and 14 shall survive the expiration or termination hereof.

14. General.

14.1 Termination for Cause.

Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within ten (10) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days.

14.2 Governing Law.

This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the State of California, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement shall be brought exclusively in the state or federal courts located in the San Francisco County. The parties hereby agree to submit to the jurisdiction of, and agree that venue is proper in, the courts in San Francisco County in any such legal action or proceeding.

14.3 Waiver.

The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

14.4 Severability.

In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.

14.5 Force Majeure.

Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, pandemic, and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

14.6 Compliance with Laws.

Each party agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including, but not limited to, any export laws and regulations of the United States.

14.7 Relationship between the Parties.

Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent.

14.8 Assignment.

Neither party may assign this Agreement without prior written consent unless in connection with a merger, acquisition, or sale of all or substantially all of its assets, and provided that the surviving entity has agreed to be bound by this Agreement.

14.9 Entire Agreement.

This Agreement together with the exhibits hereto constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. Any modification or amendment of any provision of this Agreement will be effective only if in writing and agreed upon by duly authorized representatives of both parties.

14.10 Equitable Relief.

Referrer acknowledges that a breach by Referrer of any confidentiality or proprietary rights provision of this Agreement may cause Windfall irreparable damage, for which the award of damages would not be adequate compensation. Consequently, Windfall may institute an action to enjoin Referrer from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and Windfall may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which Windfall may be entitled at law or in equity.

14.11 No Third-Party Beneficiaries.

This Agreement is intended for the sole and exclusive benefit of Windfall and Referrer and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

14.12 Independent Contractors.

The relationship of Windfall and Referrer shall be and shall at all times remain that of independent contractors and not that of employer and employee, franchisor and franchisee, joint ventures or partners. This Agreement does not establish either party as the other party’s agent or representative for any purpose. Neither party shall have any authority of any kind to bind the other party in any respect whatsoever. Without limiting the generality of the preceding sentence, neither party is authorized to accept orders or to enter into contracts or any obligation in the other party’s name, or to transact any business on behalf of the other party.

14.13 Headings.

The headings in this Agreement are for the convenience of reference only and have no legal effect.

14.14 Notices.

Windfall may give notice to Referrer by e-mail to Referrer’s e-mail address on record in Windfall’s account information. Referrer may give notice to Windfall by sending an e-mail to team@windfalldata.com, and all e-mail notices to Windfall must be confirmed by certified mail sent to Windfall Data, 430 Pacific, San Francisco, CA 94133, USA.