These Referral Program Terms (“Terms”) shall govern Vidyo’s Referral Program and are hereby agreed upon via electronic means by the individual or entity wishing to provide referrals to Vidyo (“Referring Party”). These Terms govern any referrals made by Referring Party to Vidyo of prospective Business Partners (as defined below). These Terms shall supersede any conflicting terms in any existing agreement(s) between the parties for purposes of the subject matter hereof.
- “Business Partner” means a prospective customer identified within a particular Registration Form in Vidyo’s online deal registration page (including Business Partner’s affiliates and any third party acting on its behalf), who is: 1) accepted by Vidyo and 2) purchases Products or Services respectively from Vidyo (as defined below) and/or its resellers or distributors.
- “Net Revenues” means fees for Vidyo products and services purchased by the Business Partner during the eligible Referral Period (as defined below) period including those related to 1) software licenses, 2) service subscriptions, 3) hardware purchases, 4) professional services and/or 5) maintenance and support, whether invoiced on a periodic, fixed fee, capacity, time and materials or other basis by Vidyo, net of partner discounts and sales commissions. Net Revenues shall not include amounts paid with respect to shipping, taxes and insurance.
- “Products or Services” means Vidyo’s products or services including any third party software embedded in or delivered with Vidyo’s products.
- “Registration Date” means the date a particular Registration Form is provided by a Referring Party to Vidyo.
- “Registration Form” means the referral registration form submitted through Vidyo’s online deal registration page by Referring Party.
- Referral; Registration
- Upon Referring Party’s identification of a sale opportunity with a prospective Business Partner (the “Opportunity”), the Referring Party shall register the information about the Opportunity using Vidyo’s Registration Form located on Vidyo’s online deal registration page. An approved lead is hereinafter referred to as a “Qualified Opportunity” and is eligible for a Referral Commission (as defined below) to be paid as per the terms of Section 4 of these Terms. Vidyo may reject the registration of an Opportunity for any reason, including but not limited to the following: 1) the prospective Business Partner was already a direct customer of Vidyo or a Vidyo third party partner; 2) the prospective Business Partner was an active lead with whom it or any of its direct or indirect partners has been in direct or indirect contact; or 3) a third party has already introduced this Opportunity to Vidyo. Failure of Vidyo to notify the Referring Party of acceptance within 5 days of submission of the Opportunity shall be deemed a rejection of the Opportunity.
- If the Opportunity is accepted by Vidyo, the Referring Party will setup an initial introduction meeting between Vidyo and the prospective Business Partner, which may be via a face to face meeting, joint audio or video call, joint email exchange etc., as shall be agreed in advance by the parties. The introduction is a requirement for an Opportunity to be a Qualified Opportunity.
- Any transaction with the Business Partner resulting from a Qualified Opportunity shall be pursuant to a written agreement between Vidyo (or one of its resellers and/or distributors) and the Business Partner. The Referring Party shall not be a party to such agreement, nor bound by its provisions. Vidyo (or such reseller or distributor) will be responsible for any claims related to such agreement and the sale of Vidyo’s Products or Services pursuant thereto. If the Referring Party is involved in the transaction as a reseller, distributor or otherwise, it shall not be eligible for a Referral Commission with respect thereto.
- Referral Commission. If a Qualified Opportunity results in a commercial transaction involving Business Partner and Vidyo (a “Transaction”) within 120 days from the Registration Date, Vidyo shall pay the Referring Party, per the payment terms of Section 4 of these Terms, an amount equal to 10% of all Net Revenues actually paid by Business Partner and received by Vidyo in connection with the Transaction (“Referral Commission”) during a period of one year from the effective date of the initial Transaction with such Business Partner (“Referral Period”).
- Quarterly Reports
- Payments for Own Account
- Choice of Law
- Prevailing Party Fees
- No Waiver
- Binding on Successors
- No Third Party Beneficiaries
Vidyo will provide the Referring Party with detailed quarterly reports of all Net Revenues generated from a Transaction ("Quarterly Reports"). The Quarterly Reports will be furnished to the Referring Party within 15 days after the end of each of Vidyo’s fiscal quarters. The Quarterly Report shall be accompanied by sufficient documentation to identify the Products or Services sold by Vidyo as part of the Transaction, the date of the Transaction, the Net Revenue received, and the name and address of each corresponding Business Partner.
Based on the Quarterly Reports, the Referring Party will invoice Vidyo for the applicable Referral Commission. Unless otherwise specifically provided in a separate agreement, invoiced fees payable by Vidyo shall be paid to Referring Party within 45 days from receipt of payment to Vidyo in connection with the Transaction. Referring Party shall be solely responsible for any sales, use, service, value-added, withholding tax or other tax levied or incurred on account of this Transaction or activities under these Terms, except that Vidyo shall be responsible for any tax based upon the net income of Vidyo. All amounts and other consideration payable by Referring Party pursuant to these Terms shall be paid without deduction of any such taxes. Nothing herein shall require Vidyo to register under any value-added tax or similar tax regulation in any non-US country.
Without limiting any of the rights or remedies Vidyo may have, Vidyo will not be obligated to pay Referral Commissions to Referring Party in the event of Referring Party’s breach of any existing agreements between the parties, or a breach of these Terms regardless of termination in the event of such a breach. Except in the event of a termination for breach by Referring Party of an existing agreement or these Terms, Vidyo will continue to pay Referral Commissions to Referring Party after termination as provided herein with respect to any Qualified Opportunity which was registered as set forth herein prior to the termination date.
Each party acknowledges that any sums paid to it under these Terms are for its own account and that, except as appropriate to carry out its duties set forth herein in a legal manner, such party did not, has no obligation to, and will not, directly or indirectly, give, offer, pay, promise to pay, or authorize the payment of money or anything of value to any other person in connection with the performance of its referral activities hereunder. In particular, without limitation, each party agrees not to take any actions that would cause it or the other party to violate the United States Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010, as amended, and any other applicable laws and regulations prohibiting bribery and corrupt business practices. Each party shall be responsible for any breach of this Section by its and its successors’ and permitted assigns’, affiliates, employees, officers, directors, customers, agents, distributors, resellers or vendors.
Once an Opportunity is submitted by the Referring Party to Vidyo’s online deal registration page, the Referring Party may not share the Opportunity with any other party unless Vidyo has rejected the Opportunity as per the terms of this Referral Agreement. Vidyo reserves the right to immediately withdraw acceptance of an Opportunity and/or decline to pay a Referral Commission if becomes aware that the Referring Party shared the Opportunity with any other third party. Vidyo shall at all times remain free to decline to pursue a specific opportunity in its discretion and may, subject to these Terms and any existing agreement between the parties, work with another product or product/services provider.
Vidyo may modify or terminate this program at any time with notice to Referring Party. Such changes will only affect Registration Forms submitted after the date of modification or termination.
All notices from Vidyo regarding this program and its Terms may be sent to Referring Party by mail, email, fax or other electronic media and will be considered given upon delivery to the physical address, fax number, email address or other contact information set forth in the Registration Form. Notices to Vidyo must be given in writing and delivered either by e-mail (receipt confirmed), certified mail (return receipt requested, postage pre-paid) or nationally recognized overnight delivery service (all delivery charges pre-paid) and addressed to Vidyo Inc., 433 Hackensack Ave., Hackensack, NJ 07601, Attn: Vidyo Partner Program or if by email, to email@example.com. All such notices to Vidyo shall be effective on the date actually received, or in the case of mailed notices, 3 business days (or 7 business days in the case of an international mailing) after such mailing.
Any license, right or obligation hereunder may not be assigned or otherwise transferred by either party without the other party’s express prior written consent therefor (such consent in no event unreasonably withheld or delayed); provided, however, that Vidyo may assign these Terms, without such consent, to any person or entity that acquires all or substantially all of its business or assets or succeeds to its interests by merger, consolidation, corporate reorganization or similar business combination.
The validity, construction and performance of these Terms shall be governed by the substantive law of the State of New York, United States of America, without regard to the conflict of law rules in the jurisdiction where a claim arose. The exclusive venue for any dispute arising under this Agreement shall be within the competent courts in the State of New York, NY, USA, and each party hereby consents to the jurisdiction thereof. Each party hereby waives any right that such party may possess to a jury trial in connection with any and all disputes arising out of or related to obligations hereunder.
In the event that any action, suit or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or relating to from the Referral Program or these Terms, the prevailing party shall be entitled to recover its reasonable attorney’s fees and court costs from the non-prevailing party.
Nothing in these Terms shall be construed to create a principal-agent relationship, partnership or joint venture between the parties, or give rise to any fiduciary duty from one party to the other party. Referring Party may not make any commitments or incur any liabilities on behalf of Vidyo. The Terms shall not in any way be construed as limiting or in any way otherwise constraining Vidyo from entering into or continuing similar agreements with other parties or appointing other distribution channels, partners or consultants.
If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable or contrary to law, the remaining provisions of this Agreement shall remain in full force and effect.
The failure of either party at any time to require performance by the other party of any provision of these Terms shall not be construed as acquiescence or waiver of such failure to perform such provision. The failure of either party to take action upon the breach of any provision hereundershall not be construed as acquiescence or waiver of any such breach.
These Terms shall be binding upon and inure to the benefit of the parties and their successors and assigns to the extent assignment is permitted hereunder.
Except as may be expressly set forth herein, nothing in these Terms shall be construed to give rise to any obligation on either party hereto for the benefit of a third party or to confer any rights on any third party.