Channel Partner Agreement

CHANNEL PARTNER AGREEMENT

This Channel Partner Agreement (the “Agreement”) is dated this ____ day of May, 2021 (the “Effective Date”) and is by and between Referromed US Inc., a Delaware corporation with its address at 8 Rockville Avenue, Rockville Centre NY 11570 (“Referromed”) and ______________________ with its address at   _____________________, a ___________ (entity)  (“Channel Partner”), each a “Party” and together the “Parties”.

Recitals

WHEREAS, Referromed, as the result of the expenditure of time, skill, effort, and money, has developed, and continues to develop, a distinctive online platform relating to Web-based, digital patient scheduling, physician referral and patient engagement applications, which platform is available to physicians, pharmacists, ACOs, patients, payors and employers, and all of which may be changed, improved and further developed by Referromed from time to time (the “Florie System“);

WHEREAS, Referromed has created a Channel Partner Program (the “Program”) whereby Channel Partners can assist with the marketing of the Florie System for their own benefit and the benefit of end users;

WHEREAS, the System is identified by means of certain trade names, service marks, trademarks, trade dress, logos, emblems, and indicia of origin, including, but not limited to, the name “Florie” as are now designated and may hereafter be designated by Referromed in writing for use in connection with the System (the “Proprietary Marks“);

WHEREAS, Channel Partner desires to become a participant in the Program and wishes to enter into an agreement with Referromed for that purpose, and to receive some training, compensation, and other assistance provided by Referromed in connection therewith; and

WHEREAS, Channel Partner understands and acknowledges the importance of Referromed’s high standards of professionalism and the necessity of operating as a channel partner in conformity with Referromed’s standards and specifications.

NOW, THEREFORE, the parties agree as follows:

1. The foregoing recitals are incorporated into this Agreement by this reference.
2. Program Overview.

                   2.1     Enrollment. Upon satisfaction of the Membership Qualifications and upon execution of this Agreement, Channel Partner shall be considered as enrolled in the Program. As a participant in the Program, Referromed hereby grants and Channel Partner hereby accepts, a non-transferable, non-exclusive right to (a) demonstrate the Florie System to Potential Qualified End Users; (b) promote the Florie System to Potential Qualified End Users; and (c) encourage and facilitate Florie System user account invitations to Potential Qualified End Users who accept the Florie System Terms of Use. As clarification, any wholly and majority-owned subsidiaries of Channel Partner that desires to be a participant in the Program must complete their own Individual Partner Enrollment Form for membership consideration along with a separately executed Channel Partner Agreement. Schedule “A” attached to this Agreement and made a part hereof by reference, describes the three tier levels of Program participation.

                   2.2 Membership Qualifications and Program Benefits. By enrolling in the Program, Channel Partner:

              (i) certifies that it and each of its representatives meet the Membership Qualifications for the Program;

              (ii) represents that it will continue to meet and comply with such requirements, as updated from time to time by Referromed, for the duration of its enrollment in the Program;

              (iii) agrees to notify Referromed in writing in the event it no longer meets the Membership Qualifications. 

Notwithstanding anything to the contrary in this Agreement, if at any time Referromed determines that Channel Partner does not meet the Membership Qualifications, Referromed may, in its sole discretion, modify or terminate Channel Partner’s membership in the Program, effective immediately upon notice. Referromed also reserves the right to change, in its sole discretion, the terms and conditions of the Program and will notify Channel Partner at least thirty (30) days in advance of any change.

                   2.3 Enrollment Fees. There are currently no fees required for your enrollment into the Program; however, in the future, certain Program benefits may be subject to fees as described in the Program Policies. In that case, your continued membership in the Program is at all times subject to your timely payment of any applicable fees for your Program benefits. Fees will be as stated in the Program Policies. Fees are subject to change at our discretion. Payment obligations are non-cancelable and fees paid are non-refundable.

              2.4 Opt-in to Marketing.  Channel Partner’s participation in the Program will serve as an opt-in to and acknowledgement of the marketing communications that Referromed may deem relevant to its Qualified End Users. Channel Partner shall provide appropriate notices and have obtained appropriate consents beyond what is provided by Referromed through the normal course of new End User account activation, if required, from any persons or Partner Users who are signed up to the Program on Channel Partner’s behalf.

              2.5 Disclosure of Third Parties. Channel Partner agrees to notify Referromed in advance if they plan to use any third-party subcontractor, consultant, agent, or other intermediary to assist Channel Partner in selling Referromed’s products and/or services under this Agreement. Referromed reserves the right to accept or reject any proposed third party, in its sole discretion.

              2.6 Changes to the Program. Channel Partner shall not implement any change, amendment or improvement to the Program without the express prior written consent of Referromed. Channel Partner shall notify Referromed in writing of any change, amendment or improvement in the Program which Channel Partner proposes to make, and shall provide to Referromed such information as Referromed requests regarding the proposed change, amendment or improvement. Channel Partner acknowledges and agrees that Referromed shall have the right to incorporate the proposed change, amendment or improvement into the Program and shall thereupon obtain all right, title and interest therein without compensation to Channel Partner.

3. Florie System Software Access. Referromed shall provide Channel Partner with log-in credentials to the Florie System within ten (10) days of the Effective Date and Channel Partner will be granted a non-exclusive, non-transferable limited right to access and use the Florie System Program purposes. Unless otherwise stated in the Program Policies, Florie System Software Access shall be used solely for: (a) demonstration of the Florie System to Potential Qualified End Users solely for Program purposes; or (b) training on the Florie System for Channel Partner’s employees and authorized third party representatives. As clarification, Channel Partner may become entitled to access the Florie System for other uses under a separate agreement with Referromed, however for Program purposes Florie System access is limited as described.

4. Marketing Services.

              4.1 Marketing Tools License. Channel Partner is granted a non-exclusive, non-transferable, limited license to use the marketing programs, materials and tools, (the “Marketing Tools”) provided to them as part of the Program solely for the purpose of creating, executing, and monitoring marketing campaigns for promotion of Referromed products and services; at all times Channel Partner must provide attribution to Referromed and receive Referromed’s prior approval of such campaigns. Use of such Marketing Tools is subject to this Agreement and any logo and advertising use guidelines set forth in this Agreement and the Program Policies. Channel Partner agrees to be responsible for any misuse of the Marketing Services by it or any authorized third party using the Marketing Services on its behalf and it agrees to use the Marketing Services only as a component of the Program and for Program purposes only.

4.2 Referromed Right to Audit. Channel Partner’s use of the Marketing services shall be subject to the continuing right of Referromed to review Channel Partner’s compliance with the Program with regard to quality, attribution and other standards. If Referromed, in its sole discretion, determines that use of the Marketing Services is not in compliance with this Agreement and the Program Policies, Channel Partner may be directed to promptly modify or discontinue the offending use. In the event that Marketing Services include payments to Channel Partner, then it shall maintain adequate books and records regarding the basis for such payments and shall provide Referromed copies of such records upon request.

5. Revenue Share.

5.1 Fees. Unless otherwise specified in this Agreement or the Program Policies, for each Qualified End User that Channel Partner submits to Referromed that results in Net Revenue from Transactions, Referromed shall pay Channel Partner the percentage of the associated Net Revenue, including Upgrade Net Revenue whenever applicable, corresponding to the Channel Partner’s membership tier at the time the Net Revenue was received by Referromed.

             5.2 Payments. Referromed shall bill all Qualified End Users directly and will be solely responsible for collecting payment. Fees owed to Channel Partner for any Net Revenue from Transactions will be paid to them quarterly in arrears as further set forth in the Program Policies. Referromed will provide a quarterly summary report to reconcile billable activity with fees paid. If either Party determines an error was made in the calculation of payment, each Party agrees to work diligently and in good faith to resolve the error and to ensure proper payment is made. Any payments made under this Agreement will be made by bank transfer to the designated bank account as noted in Channel Partner’s Partner Enrollment Form.

                   5.3 Qualified End User Allocation. Channel Partner’s share of any Qualified End User Transaction Fees will be allocated to the Channel Program Partner through whom (a) the Qualified End User is directly integrated, (b) the Qualified End User is under contract to be integrated, or (c) the Qualified End User was led to become a Qualified End User.  In the case of (c), Referromed will make no judgement, in the event of a dispute between two Program Partners, about the allocation of Net Revenue from Transaction Fees apart from what can be factually demonstrated through signed agreements. It is Channel Partner’s responsibility to obtain any written notices it deems necessary from the Qualified End User in the event that it has reason to be concerned that a different Program Partner may attempt to introduce the same Qualified End User to Referromed. Qualified End User Transaction Fees will be allocated based on the Qualified End User and not on the demographics of the patient.  In submitting personal data regarding a potential Qualified End User, the Channel Partner is responsible for complying with all applicable laws governing the collection, storage, processing, use and transfer of such information. Channel Partner authorizes Referromed to process such data as reasonably required to exercise its rights and perform Referromed’s obligations under this Agreement. Referromed will not process or use such data in a manner different from that necessary to carry out its obligations under this Agreement, provided however, that it may be required to provide personally identifiable information to third parties to comply with legally mandated reporting, disclosure, or other legal process requirements.

              5.4 Exclusions from Payment Obligations. Notwithstanding any other provisions of this Agreement, you will not be entitled to fees or any other compensation on any Net Revenue from Transactions if: (a) such compensation is disallowed or limited by federal, state or local law or regulation in the United States or the laws or regulations of your jurisdiction, or (b) the Qualified End User objects to this Agreement, having gained knowledge of this Agreement as a direct or peripheral result of a breach of the confidentiality of this Agreement by you or anyone who has knowledge of this Agreement originating in whole or in part through communication with you.

              5.5 Prices, Discounts and Payment Terms. The price of access and use of the Florie System shall be subject to change by Referromed at any time, provided, however, that no such price change shall affect orders accepted within ten (10) days after such price change. Referromed and the Florie System will respect all national and local price increase percentage limits, to the extent that they apply.  The prices charged by the Florie System to End Users shall be at Referromed’s sole discretion but in all cases will comply with local and national laws and regulations. This Agreement and the Program Policies set forth the fees payable in the Program.  As of the Effective Date, there is no charge to you for any of the activities set forth in this Agreement. 

6. Use of the Florie System.

The design, development and construction of the Florie System is the result of the expenditure of time, skill, effort, and money by Referromed and is a proprietary asset of Referromed.  In no event shall Channel Partner:

(a) license, sublicense, sell, resell, transfer, assign, distribute or (except as provided in this Agreement) otherwise commercially exploit or make available to any third-Party access to or elements of the Florie System in any manner;

(b) modify or make derivative works based upon the Florie System;

(c) “frame” or “mirror” the Florie System, or any element thereof, on any other server or wireless or Internet-based device;

(d) in using the Florie System, send or store any virus, worm, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or programs;

(e) interfere with or disrupt the integrity or performance of the Florie System, or the data contained therein;

(f) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material when using the Florie System; or

(g) reverse engineer or access the Florie System or any element thereof for the purpose of (i) building a competitive product or service, (ii) building a product using similar ideas, features, functions, graphics or trade dress of the Florie System, or (iii) copying any ideas, features, functions, graphics or any other element of the Florie System.

7. Participation in the Channel Partner Program.

In addition to any other restrictions set forth in this Agreement, Channel Partner’s participation in the Program and use of any part thereof, is also subject to the following: Channel Partner agrees that it shall not:

• Remove or modify any Program markings or any notice of Referromed’s, or its licensors’, proprietary rights;

• Use any Program materials in your own internal business operations or for or with any third party for use in the third party’s business operations, other than as expressly permitted in this Agreement or in the Program Policies;

• Take any action that misrepresents your relationship with Referromed, is otherwise misleading or that reflects negatively on the Program, the Florie System or Referromed; or

• Create any content or otherwise transmit any information or material that: (a) is false or misleading; (b) is harassing or invades another’s privacy, harms minors in any way, or promotes bigotry, racism, hatred or harm against any group; (c) is obscene; (d) infringes another’s rights, including but not limited to intellectual property rights; (e) constitutes unsolicited commercial email or “spam” in violation of the CAN-SPAM ACT; or (f) violates any applicable laws or regulations. Channel Partner is responsible for all content and other materials that it uploads, posts, emails or otherwise transmits while using the Florie System.

8. Compliance with Applicable Laws. Channel Partner shall comply, and shall ensure that any third parties performing sales or referral activities on Channel Partner’s behalf comply, with all applicable foreign and domestic laws, governmental regulations, ordinances, and judicial administrative orders (collectively “Applicable Laws”) and shall not engage in any deceptive, misleading, illegal or unethical marketing activities, or activities that otherwise may be detrimental to Referromed, the Florie System, end users of the Florie System or to the general public. Should Channel Partner become aware of any violations, or potential violations of Applicable Laws in connection with this Agreement, Channel Partner shall promptly inform Referromed.
9. Services, Compliance and Technical Training. Referromed may offer Channel Partner certain services and/or technical training without cost or for an additional fee as described in the Program Policies. Channel Partner agrees to use reasonable efforts to participate in the basic online training offered without cost by Referromed to end users generally. The Parties also acknowledge and agree that changes to technology are dynamic and not predictable within the term of this Agreement. In order to provide for inevitable but unpredictable changes to technological needs and opportunities, Channel Partner acknowledges that Referromed may make changes and upgrades to the Florie System and Channel Partner may be asked to undergo further training to become proficient in the accurate communication of the Florie System’s new features and functions. As a Program participant, Channel Partner agrees to make reasonable, good faith efforts to participate in such further training. Further Channel Partner agrees that Referromed shall have the right to request Channel Partner to attend compliance training should such training be required as a matter of law, statute, or third-party contractual agreement as determined solely within Referromed’s discretion. Failure to attend requested compliance training programs may result in a termination of this Agreement.

10. Technical Support. As a member of the Program, Channel Partner may be eligible to receive certain technical support offerings as described in the Program Policies. Such technical support program offerings are provided under Referromed’s technical support policies in effect at the time the services are provided. For purposes of this Agreement, technical support does not include support for third party programs or services and the technical support policies are subject to change at Referromed’s discretion.

11. Confidentiality. Neither Party (each, a “receiving Party”), along with its directors, officers, employees, agents, advisors, subcontractors, independent contractors, subsidiaries, and affiliates (collectively its “Representatives”) shall, during the Term and for a period of two (2) years thereafter, without the other Party’s (each, a “disclosing Party”) prior written approval in each instance (not to be unreasonably withheld), disclose or otherwise make available to any other person or entity (whether acquired on the Effective Date or during the continuance of this Agreement) any information relating to the disclosing Party’s business plans, products, advertising, innovations, fees, advertising or product concepts, customers, technology, computer software, computer systems, marketing methods, sales margins, cost of goods, cost of materials, capital structure, operating results, or other business affairs (including without limitation, the terms hereof), or any other proprietary or confidential information of the disclosing Party (the “Confidential Information”). The foregoing shall not apply to Confidential Information which the receiving Party can demonstrate (1) is or becomes known to the general public (other than as a result of the disclosure, directly or indirectly, by the receiving Party or its Representative); (2) was or is made available to the receiving Party on a non-confidential basis from a source other than the disclosing Party or any affiliate, provided that such source is not, and was not, to the receiving Party’s knowledge, bound by a confidentiality agreement with the disclosing Party or any affiliate or otherwise prohibited from transmitting such information by contract, legal or fiduciary obligation to the disclosing Party, any affiliate, or any third Party; or (3) is required to be disclosed by law, provided the receiving Party gives disclosing Party written notice and an opportunity to seek an appropriate protective order at its own expense. The receiving Party shall protect and safeguard the confidentiality of the disclosing Party’s Confidential Information with at least the same degree of care as the receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care. It is understood that the information required to be held in confidence as herein provided may be disclosed by the receiving Party only to Representatives who need to know such Confidential Information for the purposes of fulfilling its obligations hereunder. Such Representatives, prior to any such disclosure, shall be informed of the confidential nature of such Confidential Information, and shall agree to be bound by the terms hereof. All Confidential Information furnished to the receiving Party by the disclosing Party or any third Party at the request of the disclosing Party shall be and remain the property of the disclosing Party. All copies of such Confidential Information in written, graphic, or other tangible form shall be returned to the disclosing Party at any time upon the advance written request of the disclosing Party or upon the termination of this Agreement for any reason whatsoever, subject to the terms hereof.
12. Non-Compete. While Channel Partner acknowledges and agrees that the Program is being provided hereunder on a non-exclusive basis, Channel Partner also agrees that it may not render any similar such program and/or services for any third Party that may reasonably be considered to be a direct competitor of Referromed. This restriction shall last for the duration of the Term and for a one (1) year period thereafter.

13. Intellectual Property Ownership.

13.1 Technology. Subject to the limited licenses set forth in this Agreement, nothing in this Agreement transfers or assigns to Channel Partner any of Referromed’s intellectual property rights in the Program, the Florie System or any other applications or technology, products or services, and nothing in this Agreement transfers or assigns to you any of our intellectual property rights in the Marketing Services.

13.2 Referromed Trademarks. Referromed’s marks, “Florie”, the “Florie”, “Florie” logo and the “Florie System”, and other marks used on Referromed websites are trademarks or service marks and may not be used in any manner except as expressly permitted herein. Channel Partner shall not include any of Referromed’s marks in close proximity with any of Channel Partner’s marks or company names or logos except as described and shown in the Program Policies.

14. License to Channel Partner.

Subject to the Program Policies, Referromed hereby grants to the Channel Partner a worldwide, nonexclusive, non-transferable, non-sublicensable, royalty-free license to use Referromed’s marks and the associated logos solely in connection with the Program and so long as use is in strict compliance with the Program Policies. Any use of marks shall have proper markings and legends and Channel Partner shall not make any express or implied statement or suggestion, or use Referromed’s marks in any manner that dilutes, tarnishes, degrades, disparages or otherwise reflects adversely on Referromed, the Florie System or the Program including its business, products or services.

15. License to Referromed. Channel Partner hereby provides Referromed with a limited, fully paid-up, royalty free, non-exclusive and non-transferable (other than as specifically set forth herein) right and license to use Channel Partner’s name and any trademark or logo which usually accompanies Channel Partner’s name in connection with the Program. Said uses shall include but are not limited to, placing Channel Partner’s name and logo/trademark on Referromed’s website and on advertising and marketing materials noting Channel Partners participation in the Program. Subject to their approval, which shall not be unreasonably withheld, Channel Partner agrees to allow Referromed to use or refer to any Channel Partner articles, podcasts or other references by Channel Partner or its integrated End Users, in their unmodified form, that promote the Program or the Florie System. Channel Partner’s license to Referromed shall terminate upon the expiration or earlier termination of this Agreement.
16. Representations & Warranties. Each Party represents and warrants that it is duly organized, validly existing, and in good standing in its state of incorporation or formation, and has the full power and authority to enter into this Agreement and fulfill its obligations hereunder. Referromed represents and warrants to the Channel Partner that the information and materials created or provided by it in the Program, to the best of its knowledge, when used as authorized: (1) do not violate any applicable law, rule, or regulation; and (2) do not violate the third-party rights of any person or entity in any way (including without limitation any intellectual property, privacy, defamation, or publicity rights). Channel Partner further represents and warrants that it shall perform the services required as a participant in the Program: (1) in accordance with the terms and subject to the conditions set out in this Agreement and the Program Policies; (2) using personnel possessing the requisite skill, experience, and qualifications necessary to perform the services in a first-class professional manner in all respects; and (3) in a professional manner in accordance with generally recognized industry standards for similar services.
17. Indemnification. Each Party (each, the “Indemnifying Party”) agrees to indemnify, defend, and hold the other Party (each, the “Indemnified Party”), along with the Indemnified Party’s affiliates, officers, directors, employees, subsidiaries, parent, agents, and permitted assigns, harmless from and against any and all third party claims, losses, liabilities, damages, expenses, and costs, including reasonable outside attorneys’ fees and court costs, to the extent arising out of the Indemnifying Party’s (1) negligence or willful misconduct; (2) violation of applicable law (including those related to HIPPA, intellectual property or data protection); or (3) material breach of any of the terms of this Agreement (including the representations & warranties contained herein). The Indemnified Party shall provide the Indemnifying Party with prompt written notice of any claim and give complete control of the defense and settlement to the Indemnifying Party, and shall reasonably cooperate with the Indemnifying Party, its insurance company, and its legal counsel in its defense of such claim(s), at the Indemnifying Party’s expense. This indemnity shall not cover any claims in which there is a failure to give the Indemnifying Party prompt notice, but only to the extent such lack of notice prejudices the defense of the claim. The Indemnifying Party may not settle any potential suit hereunder without the Indemnified Party’s prior written approval (not to be unreasonably withheld, conditioned or delayed).
18. Warranties, Disclaimers and Remedies. REFERROMED DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES REGARDING THE FLORIE SYSTEM, WHETHER EXPRESS, IMPLIED OR STATUTORY, ORAL OR IN WRITING, ARISING UNDER ANY LAW, INCLUDING WITH RESPECT TO VALIDITY, NON-INTERRUPTION, ERROR-FREE OPERATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT WILL REFORRMED BE LIABLE TO CHANNEL PARTNER OR TO ANY OTHER INDIVIDUAL OR ENTITY AFFILIATED WITH CHANNEL PARTNER FOR ANY CLAIM, LOSS OR DAMAGE ARISING OUT OF THE OPERATION OR AVAILABILITY OF THE FLORIE SYSTEM. REFORRMED FURTHER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE CHANNEL PARTNER PROGRAM INCLUDING THE MARKETING SERVICES, OR THIRD-PARTY SERVICES AND PRODUCTS, INCLUDING WITH RESPECT TO THE PERFORMANCE, FUNCTIONALITY, QUALITY, BENEFITS OR AVAILABILITY OF ALL OF THE FOREGOING.
19. Termination. This Agreement may be terminated by either Party, for any or no reason at all, upon the provision of sixty (60) days prior written notice to the other Party. Additionally, this Agreement may be immediately terminated by either Party without liability if: (1) the other Party violates any applicable law, rule, regulation, or ordinance; (2) the other Party otherwise materially breaches any provision, warranty, or representation of this Agreement, and, if such breach or violation is curable, it remains un-remedied for a period of thirty (30) days following receipt of written notice detailing such breach or violation; or (3) the other Party becomes insolvent, makes a general assignment for the benefit of its creditors, suffers or permits the appointment of a receiver for its business, or becomes subject to any proceeding under bankruptcy laws or any other statute or laws relating to the insolvency or protection of the rights of creditors. In the event of any termination hereunder, each Party shall immediately transfer to the other Party all materials in its possession or control owned by or created for the other Party hereunder (including without limitation the other Party’s Confidential Information, as in Section 11 of this Agreement), Channel Partner shall cease to use, without limitation, all Program material and each Party shall immediately cease to use the other Party’s intellectual property, including trademarks, logos and/or trade dress. In the event of expiration or termination of this Agreement, it is understood by the Parties that the End Users integrated with the Channel Partner and otherwise, shall continue to use the Florie System as their separate contractual rights allow pursuant to their agreements regarding the Florie System.
20. 19. Limitation of Liability. EXCEPT FOR EACH PARTY’S RESPECTIVE INDEMNIFICATION, NON-COMPETITION OR CONFIDENTIALITY OBLIGATIONS HEREUNDER AND/OR EACH PARTY’S FRAUD OR GROSS NEGLIGENCE: (1) IN NO EVENT SHALL EITHER PARTY BY LIABLE UNDER THIS AGREEMENT TO THE OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, AND COSTS OF COVER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (2) EACH PARTY’S AGGREGATE LIABILITY FOR CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE APPLICABLE FEES PAID UNDER THIS AGREEMENT FOR THE TWELVE MONTHS PRIOR TO THE DATE OF THE CLAIM.
21. Waiver of Right to Jury Trial. CHANNEL PARTNER AND REFERROMED HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY AGREE TO IRREVOCABLY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM, WHETHER AT LAW OR IN EQUITY, BROUGHT BY EITHER OF THEM AGAINST THE OTHER, WHETHER OR NOT THERE ARE OTHER PARTIES IN SUCH ACTION OR PROCEEDING.
22. Severability. In the event that any term of this Agreement is deemed to be invalid, illegal, or otherwise unenforceable: (1) the Parties shall use all reasonable efforts to negotiate in good faith to amend the term to eliminate any such invalidity, illegality, or unenforceability to the extent practically possible, taking into full account their original intent when entering into this Agreement in the first instance, and (2) the remaining provisions hereof shall continue in full force and effect.
23. Notice. Any notices, consents, approvals, submissions or demands given under this Agreement (herein called “Notice” or “Notices”) shall be in writing. Notices shall be deemed given if sent by: (a) personal service; (b) email if sent to the email address below that Party’s signature to this Agreement; (c) first class mail, certified or registered, postage prepaid, return receipt requested; or (d) a national overnight courier service that provides a receipt, if sent to either Party, at the address of set forth for that Party in the introduction of this Agreement and to the attention of the signatory to this Agreement or such other address or person as a Party may designate by Notice to the other Party from time to time. Personal service and service by email shall be conclusively deemed made at the time of such personal service or the time at which the email was sent.  If given by mail, such Notice shall be conclusively deemed given five (5) business days after the deposit thereof in the United States mail, and if given by overnight courier, the next business day. 
24. Assignment. Neither Party may assign or otherwise transfer this Agreement, in whole or in part, without the other Party’s prior written consent in each instance, such consent not to be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, either Party is free to assign this Agreement to any (a) affiliate, or (b) to a successor entity that assumes all, or a majority of, such Party’s assets in writing. Any assignment in violation of this clause shall be null and void.
25. Relationship of the Parties. The Parties hereto are independent contractors and as such, at no time shall either Party be considered partners, or an employee or employer of one another notwithstanding the term “partner” used in our channel partner program. Without limitation on the generality of the foregoing, neither Party may bind the other Party to any agreement, obligation or covenant of any kind (expressed or implied) without the bound Party’s prior written consent in each instance.
26. Survival. Following the Term, any and all provisions set forth herein which, by their very nature, are intended to survive any expiration or termination hereof, shall so survive, including without limitation, the provisions respecting confidentiality, non-competition, representations & warranties, indemnifications, and limitations on liability
27. Waiver. The failure of either Party to require performance by the other Party of any provision hereof will not affect the full right to require such performance at any time thereafter; nor will the waiver by either Party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.
28. Governing Law. This Agreement shall be governed by the laws of [your state] without regard to its conflict of laws principles. The Parties hereby agree that any action arising out of this Agreement will be brought solely in any state or federal court located in [your state]. Both Parties hereby submit to the exclusive jurisdiction and venue of any such court. The rights and remedies of the Parties as set forth in this Agreement are not exclusive of any other rights and remedies to which they may be entitled under law or contract.
29. Entire Agreement; Modification. This Agreement (along with the schedules specifically incorporated herein) sets forth the entire agreement between the Parties with respect to its subject matter and supersedes any prior agreement or communications between the Parties, whether written or oral relating hereto. No representation, inducement, or promise has been made or relied upon by either Party other than as expressly set forth in this Agreement. This Agreement may be modified only by a written amendment signed by an authorized representative of each Party. To the extent that the terms hereof contradict any of the terms of any attachment hereto, the terms hereof shall govern, unless such contradiction is specifically addressed and resolved in such attachment.

29. Definitions

“Florie” and “the Florie System” mean the online, Web-based, digital Patient scheduling, physician referral and Patient engagement applications and platform provided by us via https://myflorie.com and/or other designated websites, but excluding any third-party applications and websites.

“Florie Terms of Use” means the terms of use which govern the use of the Florie System and Florie which are accessible via https://myflorie.com/terms-of-use.

“Integrated” means the software integration between a Program Channel Partner and a Qualified End User’s EMR/EHR.

“Membership Qualifications” means the applicable requirements for participation in the Program as stated in this Agreement and as also set forth in the Program Policies from time to time.

“Net Revenue from Transactions” means Transaction fees actually paid by the Qualified End User (net of any discounts, taxes payable and subsequent refunds not due to a contract breach by us) when recognized as revenue by Referromed in accordance with generally accepted accounting principles. Net Revenue does not include fees for support, implementation, customization, training, consulting or other professional services, or fees for third-party products or services.

 “Partner User” shall mean the Partner’s employee (or contractor that has signed a nondisclosure agreement protecting Referromed’s information and rights hereunder) who is authorized by the Channel Partner to represent it in connection with the Program.

“Potential Qualified End User” means, referral of a potential end user of the Florie System who is, in Referromed’s reasonable determination, a new potential end user and not then or during the prior sixty (60) days, an existing end user, or in Referromed’s active sales process.

“Program” means the Channel Partner Program as defined by this Agreement and the Program Policies.

“Program Policies” means the policies and documentation describing the Program in this Agreement including Schedule B  .

“Qualified End User” means an end user of the Florie System.  For the purposes of this Agreement, Qualified End Users are intended to refer to (but are not necessarily limited to) healthcare providers/healthcare provider organizations, pharmacists, medical device organizations, pharmaceutical organizations, and insurance payors.

“Transaction Fees” means the net revenue (net of any discounts, taxes payable and subsequent refunds not due to a contract breach), when recognized as revenue by Referromed in accordance with generally accepted accounting principles, from (a) End User transactions or (b) periodic, per-user, or any other fees negotiated by End Users with the Florie System in lieu of transaction-based billing.  Transaction Fees do not include fees for support, implementation, customization, training, consulting or other professional services, or fees for third-party products or services.

“Upgrade Net Revenue” means, with respect to upgrades or additions to the functionality of the Florie System software, the incremental increase in Transaction Fees actually paid by the Qualified End User for such upgraded additions (in either case net of any discounts, taxes payable and subsequent refunds not due to a contract breach), when recognized as revenue by Referromed in accordance with generally accepted accounting principles.  Upgrade Net Revenue does not include fees for support, implementation, customization, training, consulting or other professional services, or fees for third-party products or services.

IN WITNESS WHEREOF, the undersigned Parties have caused this Agreement to be executed by their respective authorized representatives. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same original.

REFERROMED                                                                   CHANNEL PARTNER

____________________________                                        ___________________________

By: Alan Quinlan                                                                  By: ________________________

Title: ______________________                                          Title: ______________________

Date: ______________________                                          Date: ______________________

Email: _____________________                                          Email: _____________________

SCHEDULE A

Channel Partner Membership Tiers

(1) “Collaborator” (Level One) Channel Partner Responsibilities and Benefits:

• Has and can demonstrate a full understanding of the Florie System platform and can articulate Referromed’s value proposition.
• Are actively soliciting clients and marketing the Florie System suite of tools, initially by inviting and encouraging usage among the Qualified End Users and the Patient Users legally available to them in their database.
• Have fully cooperated and executed their responsibilities through completion of an integration of their provider and/or patient database with Florie’s API or a secure patient and provider demographic upload to Florie’s encrypted database.
• Collaborator Channel Partners receive a 10% commission on revenue realized from patient appointment, content delivery, and monthly seat license fees collected from Qualified End Users who converted into active accounts as a direct result of Channel Partner’s invitation.

Select Collaborators who have been approved by Referromed and have agreed to assume full technical and End User support to Qualified End Users across their commission base may apply to become “Distributor” Channel Partners.

(2) “Distributor” Channel Partners:

• Have demonstrated consistent success as Collaborators.

• Have agreed to and demonstrated the capability to assume full technical and End User support across their commission base.

• Distributor Channel Partners receive a 20% commission from their Qualified End User commission base.

Schedule B

Channel Partner Program Policies

• Fees paid to Florie
  • Presently there are no fees for any of the activities that can be undertaken as a Channel Partner however Referromed reserves the right to charge fees in the future for participation in the Channel Partner Program upon notice to the Channel Partner.

• Channel Partners are reminded that they may also undertake activities as a Qualified End User if they are and continue to be licensed to maintain independent and lawful patient relationships. End User Fees are the same as displayed and charged to other Qualified End Users on Referromed’s website (less a Channel Partner discount equal to the commission that would have otherwise been earned on the Qualified End User activity). Channel Partners rights and obligations as a Qualified End User are as detailed in the separate Qualified End User agreement.

• Florie System software use as Qualified End User
  • Channel Partner must have existing and lawful relationships with patients and providers with whom the Channel Partner plans to interact.
  • Channel Partner may maintain separate ‘practices’ under one organization as the Channel Partner sees fit in order to separate Channel Partner activities from End User activities, although invitations to Florie will count towards Channel Partner revenue share regardless of the practice from which the invitations were made.

• Florie System logo and advertising use policy
  • Channel Partner shall only use the logos and approved marketing materials provided by Florie or otherwise approved in writing by Referromed for the purposes of reselling, promoting, or marketing the Florie System platform. Channel Partner shall not modify any such marketing materials without Florie’s prior written approval. Channel Partner shall not misrepresent Florie’s services or the prices applicable thereto, or make unfair, misleading, inaccurate, or false claims about Florie’s services. Channel Partner’s violation of these Channel Partner Program Policies or any other terms of the Agreement may, in Florie’s sole discretion, result in immediate termination of the Agreement, as well as any other remedies that may be available.
  • In the event that Channel Partner displays its name and/or its logo or both on Florie material and/or communications, Channel Partner agrees to do so in a manner such that the Florie trademarks, logos and the like are displayed separate and apart from the Channel Partner’s name and marks. The marks should be displayed such that the reader of the material understands that Florie (and Referromed) and the Channel Partner are separate companies.

• Commissions to Channel Partners will be paid as a percentage of actual revenue realized by Referromed quarterly in arrears unless otherwise specified.

• The Channel Partner Program and all elements thereof and related Program Policies are Confidential Information and subject to the terms of Section 11 of this Agreement.

• Technical support and training are complementary for Channel Partners and are to be led exclusively by Florie staff absent a specific, written exception by Referromed. Channel Partners have full access to live customer support within the application.  Participation in the Channel Partner Program requires that Channel Partner certify that they will make an ongoing, good faith effort to ensure that any scheduled training is well-attended by the necessary Channel Partner staff and that all attendees retain and assimilate the training.  In the event that Channel Partner’s participation in the Program requires excessive rescheduling or retraining, then in Referromed’s sole discretion, upon seven (7) days’ written notice to Channel Partner, Referromed may charge Channel Partner for the additional training. In this instance, training will occur at the rate of $350 per hour.

• Any changes to the Channel Partner Program shall be made in writing and communicated to Channel Partner by Referromed at least thirty (30) days prior to their implementation. Channel Partner’s continued participation in the Channel Partner program after that time shall be deemed by Referromed as Channel Partner’s acceptance of the Program change(s).