Referral Terms and Conditions

These Referral Terms and Conditions apply to all referrals made pursuant to an Opportunity Registration Form (“Registration”) between InterWorks, Inc., an Oklahoma corporation with a principal place of business at 1425 S. Sangre Rd., Stillwater, OK 74074 (“Company”) and the Referrer identified in the Registration. Capitalized terms used but not defined herein shall have the meaning given them in the Registration.

Opportunity Registration. Referral Fees shall only by owed to Referrer on opportunities that have been registered by Referrer and approved by the Company on an Opportunity Registration Form prior to the closing of any sales related thereto. Referrer shall provide all pertinent contact information regarding the potential opportunity in the Registration. Approval of an opportunity will be made in the Company’s sole discretion. Each opportunity must be registered separately on an Opportunity Registration Form, and no Referral Fees will be paid without such form approved in advance by Company.

Referral Fees.  The Company shall pay to Referrer the Referral Fee shown in the Registration Form.  No Referral Fee will be paid on the initial purchase of, or any subsequent renewals of, any product maintenance by such customer. Referrer acknowledges and agrees that the level of margin earned by the Company on the sale of third-party products may vary based on circumstances, including discounts offered by the Company or the third-party provider, and Company shall determine final price to its customers in Company’s sole discretion. Referral Fees shall not be calculated to include any applicable taxes or expenses reimbursed by the customer.

Payment of Referral Fees. The Company shall pay Referral Fees within 30 days of the receipt of payment by Company on the underlying sale. The Company shall have no liability to pay Referral Fees on invoiced amounts unpaid by the customer.  Referral Fees will be paid on third-party products and services purchased by the referred customer within the Referral Period shown in the Agreement, and for any subsequent purchases by such customer to which Referrer materially contributes, and for which the Company received margin from the third-party provider, if applicable.

Independent Contractor. It is the express intention of the parties that Referrer is an independent contractor. Neither party is an agent, representative or partner of the other party. Neither party shall have any right, power, or authority to enter into any agreement for or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. The Agreement shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either of the parties. Referrer shall be responsible for all taxes or payments required to be made by the federal and state Unemployment Compensation Acts, Social Security Acts and all amendments thereto requiring payment by Referrer on account of any acts contemplated under this Agreement and shall indemnify and hold the Company harmless from and against all taxes, losses, damages, liabilities, costs, and expenses, including attorney’s fees and other legal expenses arising directly or indirectly from Referrer’s breach of this subsection of this Agreement.

Employment Taxes and Benefits. Referrer agrees to pay all taxes on the compensation provided hereunder. Referrer will defend, indemnify and hold the Company harmless from and against all claims, damages, losses, and costs and expenses, including reasonable fees and expenses of attorneys and other professionals, relating to any obligation imposed upon the Company to pay any withholding taxes, social security, unemployment or disability insurance, or similar items including, but not limited to labor laws or wage laws in connection with compensation received by Referrer. Referrer will not be entitled to participate in any plans, arrangements, or policies of the Company including, but not limited to, any plan arrangement or policy providing bonus, vacation, stock option, sick leave, disability, medical, retirement, profit sharing, or similar benefits for the Company employees. No employee benefits or tax qualified plans provided to the Company employees shall be available to Referrer. Referrer acknowledges that no insurance whatsoever, including Worker’s Compensation insurance has been or will be obtained by the Company on behalf of Referrer.

Definition. “Confidential Information” means the Work Product and any proprietary information, technical data, trade secrets or know-how of the Company, including, but not limited to, research, business plans or models, product plans, products, services, computer software and code, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, customer lists and customers (including, but not limited to, customers of the Company on whom Referrer called or with whom Referrer became acquainted during the term of its services), markets, finances or other business information disclosed by the Company either directly or indirectly in writing, orally or by drawings or inspection of parts or equipment. Confidential Information does not include information which: (a) is known to Referrer at the time of disclosure to Referrer by the Company as evidenced by written records of Referrer, (b) has become publicly known and made generally available through no wrongful act of Referrer, or (c) has been rightfully received by Referrer from a third party who is authorized to make such disclosure.

Non-Use and Non-Disclosure. Referrer shall not, during or subsequent to the term of this Agreement: (i) use the Company’s Confidential Information for any purpose whatsoever other than the performance of the Services on behalf of the Company, or (ii) disclose the Company’s Confidential Information to any third party. It is understood that said Confidential Information is and will remain the sole property of the Company. Referrer shall take all reasonable precautions to prevent any unauthorized use or disclosure of such Confidential Information. Referrer, its servants, agents, and employees shall not use, disseminate or distribute to any person, firm or corporation, incorporate, reproduce, modify, reverse engineer, decompile or network any Confidential Information, or any portion thereof, for any purpose, commercial, personal, or otherwise, except as expressly authorized in writing by the Company. Upon completion of the Services or termination of this Agreement, or at any time thereafter, Referrer and its servants, agents, and employees shall promptly return to the Company, or upon the request of the Company shall destroy or delete, all such tangible Confidential Information, including, but not limited to, any and all devices, records, data, notes, reports, proposals, lists, correspondence, specifications, drawings blueprints, sketches, materials, equipment, other documents or property, or reproductions of any aforementioned items developed by Referrer pursuant to its employment by the Company or otherwise belonging to the Company.

Third Party Confidential Information. Referrer recognizes that the Company has received and in the future will receive from third parties their proprietary information, technical data, know-how, trade secrets or other information of a type or nature similar to Confidential Information (“Third Party Information”) subject to a duty on the Company’s part to maintain the confidentiality of such information and to use it only for certain limited purposes. Referrer agrees that Referrer owes the Company and such third parties, during the term of this Agreement and thereafter, a duty to treat such Third Party Information as if it were Confidential Information in accordance with the obligations of Section 3.2 above.

Term. The Agreement will commence on the date first written above and will continue until earlier of: (i) one (1) year following the Effective Date or (ii) termination as provided below.

Termination. Either party may terminate this Agreement upon thirty (30) days written notice to the other party.

Effect of Termination. Upon the termination for any reason, or upon expiration of this Agreement, or upon the Company’s earlier request, Referrer shall: (a) discontinue use of all Confidential Information of the Company, and (b) deliver to the Company all embodiments of the Company’s Confidential Information that Referrer may have in Referrer’s possession or control.

Survival. Upon termination or expiration, all rights and duties of the parties toward each other will cease except: (a) the Company shall pay, within thirty (30) days of the effective date of termination, all amounts owing to Referrer for Services completed and accepted by the Company prior to the termination date in accordance with these terms; and (b) any right or obligation of the parties which, by its express terms or nature and context is intended to survive termination or expiration of the Agreement, will survive any such termination or expiration.

Assignment.  This is a contract for the services of Referrer; consequently, Referrer shall not transfer or assign any of its rights or delegate any of its obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the Company’s prior written consent. Any purported transfer, assignment, or delegation by Referrer without such prior written consent shall be null and void ab initio and of no force or effect. Subject to the foregoing, this Agreement shall inure to the benefit of the parties and their successors, transferees, and assignee.

Indemnification. Referrer shall defend, indemnify and hold the Company harmless from and against any claim, loss, costs, or damages, including, but not limited to reasonable attorneys’ fees, arising out of or resulting from the following: any action by a third party against the Company that is based upon any claim that any Services performed under this Agreement, or the result thereof infringe a patent, copyright or other proprietary right or violate a trade secret, or any action by a third party that is based upon (i) any negligent, reckless, or intentionally wrongful act or omission of Referrer or Referrer’s assistants, employees, agents,  (ii) or any breach or alleged breach by Referrer or Referrer’s assistants, employees or agents of any of the covenants, representations, or warranties contained in this Agreement.

The Company shall defend, indemnify and hold Referrer harmless from and against any claim, loss, costs, or damages, including, but not limited to reasonable attorneys’ fees, arising out of or resulting from any action by a third party based upon (i) any negligent, reckless, or intentionally wrongful act or omission of the Company or the Company’s assistants, employees, agents, (ii) or any breach or alleged breach by the Company or the Company’s assistants, employees or agents of any of the covenants, representations, or warranties contained in this Agreement.

Conflicting Obligations. Referrer represents and warrants that it has no outstanding agreement or obligation that are in conflict with any of the provisions of this Agreement or that would preclude Referrer from complying with the provisions hereof, including the provisions of Section 4 hereof, and further represents and warrants that it will not enter into any such conflicting agreement during the term of this Agreement. Referrer specifically represents that it shall undertake all necessary steps to comply with the conflict of interest policies and any similar policies of his current employer.

Non-Solicitation of Employees. Referrer agrees that during the period of this Agreement, and for a period of one (1) year immediately following the termination of this Agreement for any reason, whether with or without cause, Referrer shall not either directly or indirectly through an intermediary, solicit, induce, recruit or encourage any of the Company’s employees, subcontractors, or contractors to leave their employment, or take away such employees, or attempt to solicit, induce, recruit, encourage or take away employees, subcontractors, or contractors of the other, for any other person or entity. Such restrictions shall apply whether Referrer is acting on his behalf, or for the benefit of any other person or entity.

Non-Solicitation of Suppliers/Customers. Referrer agrees not to directly or indirectly solicit or take away suppliers or customers of the Company if the identity of the supplier or customer or information about the supplier or customer relationship was disclosed to Referrer pursuant to this Agreement. Nothing in this section is intended to restrict Referrer from offering services to suppliers or customers of Company that do not compete with Company’s services.

Warranties and Limitations. Each party hereto represents and warrants that: (a) each party has the full corporate right, power, and authority to enter this Agreement and to perform the acts required of each hereunder; (b) the execution of this Agreement by such party, and the performance by such party of its obligations and duties hereunder do not, and will not violate any agreement to which such party is bound; and (c) when executed and delivered by such party, this Agreement shall constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

Limitation of Liability. Except for claim arising under Section 2, Section 3, and Section 6, each party hereto disclaims any and all liability for special, incidental, consequential or indirect damages (including loss of use and profits) arising out of this agreement or with respect to the installation, use, operation or support of any product developed pursuant to this agreement, however caused, whether for breach of contract, negligence, or otherwise, even if the breaching party has been informed of the possibility of such damages. In no event shall Referrer’s liability to the Company for monetary damages exceed the amount that Company has paid to Referrer at the time of said breach. In no event shall the Company’s liability to Referrer for monetary damages exceed the amounts due and owing Referrer at the time of said breach. These limitations shall apply notwithstanding any failure of the essential purpose of any limited remedy.

Entire Agreement. The Agreement, along with these terms and conditions, is the entire agreement of the parties and supersedes any prior agreements between them, whether written or oral, with respect to the subject matter hereof. No waiver, alteration, or modification of any of the provisions of this Agreement will be binding unless in writing and signed by duly authorized representatives of the parties hereto. In the event of any conflict between the terms of this Agreement and any Exhibit hereto, the terms of this Agreement shall control and govern.

Miscellaneous. Any term or provision of the Agreement or these terms and conditions may be amended, and the observance of any term, waived only by a writing signed by the Party to be bound. No waiver of any default of the terms or conditions of this Agreement will be deemed to be a waiver of any other default, or any subsequent default of any terms or conditions of this Agreement, but will apply solely to the instance to which such waiver is directed. Any notices or correspondence between the parties shall be forwarded to the addresses above noted for the respective parties. If a court or arbitrator holds any provision of this Agreement, or its application to any person, place or circumstance, to be invalid, unenforceable, or void, such provision shall be enforced to the greatest extent permitted by law, and the remainder of this Agreement and such provision as applied to other persons, places and circumstances, shall remain in full force and effect. In any legal action, arbitration, or other proceeding brought to enforce the terms of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs. Referrer may reference the Company as a client, provided, however, that Referrer shall not use the name, logos, or trademarks of the Company in any promotional material, whether printed, written or electronically delivered, without the express written consent of the Company. The Agreement shall be construed and interpreted according to the laws of the State of Oklahoma without regard to conflicts of laws principles.