Marketplace Referral Agreement

This Referral Agreement is an Attachment that is incorporated by reference into the API License Agreement, and including any schedules, exhibits, and other attachments hereto which are entered into by the Parties hereunder (all of the foregoing, collectively, this “Agreement”) by and between NexHealth, Inc. (“NexHealth”) and the entity agreeing to the terms of this Agreement as indicated in the Developer Agreement (“Company”). Company and NexHealth are each referred to herein as a “Party” and are collectively referred to herein as the “Parties.”

1. DEFINITIONS

The capitalized terms used herein have the meanings set forth below:

“Commission” means the amounts payable to the Referring Party by the Engaging Party as compensation for a Referred Customer.

“Referred Customer” means a customer (other than Referring Party) that purchases Engaging Party’s Services in direct connection with Referring Party’s activities under this Agreement. A referral in direct connection with Referring Party’s activities under this Agreement, includes and is not limited to, when during a customer’s purchasing journey, such customer indicates their interest in Engaging Party’s services to Referring Party (such as by clicking a button on Referring Party’s website or otherwise taking an action indicating such interest to Referring Party) and such customer purchases Engaging Party’s Services. 

“Services” means the Party’s respective services eligible for Commission, as respectively applicable, as provided in the Company Referral Qualifying Services section and the NexHealth Referral Qualifying Services section of the Developer Agreement.

“Order Document” means a sales order, statement of work, or other document used to purchase Engaging Party’s Services from Engaging Party.

“Territory” means the United States.

2. REFERRALS AND COMMISSIONS

2.1 Scope of Relationship. Each Party (“Engaging Party”) engages the other Party (“Referring Party”) to refer the Engaging Party’s Services to Referring Party’s customers in the Territory, during the Term solely in accordance with the terms and conditions of this Agreement. Each Party hereby accepts such appointment and shall at all times act and shall cause each of its agents and employees to at all times act, in compliance with the terms and conditions of this Agreement. This Agreement is non-exclusive in nature and nothing herein shall be construed as limiting or prohibiting either Party from entering into similar arrangements with third parties, whether with respect to similar or any other products, services, customers, industries, industry segments, or geographic areas. 

2.2 Commission. Subject to the terms of this Agreement and to the extent the Developer Agreement provides for Commissions, Referring Party will earn Commission from the Engaging Party when a Referred Customer purchases Engaging Party’s Services from Engaging Party after being referred to Engaging Party by Referring Party (“Referral Commission”). 

2.2.1 General Eligibility. To be eligible to earn any Commission, the following conditions must be met:

2.2.1.1 To the extent the Referred Customer purchases are for Services;

2.2.1.2 The Referred Customer purchases must not have been ordered through a third party (such as a reseller or distributor), and NexHealth Services must not have been purchased in connection with a Company’s customer’s installation or use of the NexHealth Synchronizer, NexHealth dashboard or other NexHealth services are not eligible to be a Referred Customer or otherwise earn Commission;

2.2.1.3 The Engaging Party must have collected full payment of all applicable fees from the Referred Customer;

2.2.1.4 The Referred Customer’s right to a refund must have expired; and

2.2.1.5 The Referring Party must have provided all tax documentation that the Engaging Party needs to make payments to the Referring Party, including Referring Party’s W-9.

2.2.2 Referral Commission.  To be eligible to earn Referral Commission, the following conditions must be met:

2.2.2.1 Referring Party must have submitted the Referred Customer's contact information to Engaging Party directly to Engaging Party’s partnerships or sales team, through additional means specifically defined by Engaging Party, or in the case of NexHealth as the Referring Party, through product-based notifications provide by NexHealth to Company;

2.2.2.2 At the time Referring Party submits the Referred Customer’s contact information to Engaging Party, the Referred Customer must not be currently entered into Engaging Party’s customer management system as an engaged opportunity (which Engaging Party must notify Referring Party of within sixty calendar days from the date of the referral being sent to the Engaging Party);

2.2.2.3 The Referred Customer must purchase Services from Engaging Party within six months of the initial referral by Referring Party, determined by the effective date of the Order Document;

2.2.2.4 Any submission of a Referred Customer's contact information must be made in good faith; and

2.2.2.5 If the Referring Party and one or more other third parties submit a referral for the same Referred Customer to the Engaging Party within a six-month period, the Referring Party will earn the Commission if it is the first to submit the Referred Customer (which Engaging Party must notify Referring Party of within sixty calendar days from the date of the referral being sent to the Engaging Party).

2.2.3 Calculation.

2.2.3.1 Commission is calculated by multiplying the applicable percentage set forth in the Developer Agreement (in the relevant Commission section) and Net Revenue.  “Net Revenue” means the gross amount of fees for the Services set forth in Referred Customer’s initial scope of purchase of Services, less credited charges, refunds, chargebacks, or invoice adjustment.  Net Revenue excludes: (a) charges in connection with upgrades made to a Referred Customer's subscription plan during its subscription term or to a Referral for exceeding its subscription plan level (such as exceeding the number of transactions included in an Order Document); (b) postage, fax, insurance, or other administrative charges; and (d) any taxes, interest, fines, or other charges or assessments imposed or levied by a governmental agency.

2.2.3.2 If Referring Party receives Commission under this Agreement, Referring Party will not be eligible to receive Commission under any other partner program of the Engaging Party for the same order of Services.

2.3 Fees and Payment.

2.3.1 Payment.  Engaging Party will pay Commission payments (“Payment(s)”) within 30 calendar days from the end of the calendar month in which Engaging Party invoiced the Referred Customer. Engaging Party will track commissionable sales to Referred Customers and make those reports available to Referring Party. The form of reports to be used will be provided by NexHealth.

2.3.2 Offsets and Refunds. Subject to Section 2.3.4 (Claims) below, Engaging Party may deduct or offset amounts owed by Referring Party to Engaging Party from any Payments. For example, if any amount is paid to Referring Party in error, Engaging Party may deduct such erroneously paid amount from subsequent Payments. If a Referred Customer does not pay the invoiced amounts or a refund is issued to a Referred Customer, and a Commission was previously paid to Referring Party based on the amount that was invoiced, Engaging Party may offset the amount of the Commission paid on the unpaid Referred Customer invoice or refunded amount from a future Payment.  If the amount owed by a Party under this section exceeds the Payments owed to such Party, such Party will pay to the other Party such excess amount owed within 30 calendar days of the date of the other Party’s invoice.

2.3.3 Taxes. Calculations of the fees payable to Referring Party under this Agreement do not include any applicable taxes, including, but not limited to, sales, use, excise, value-added, business, services, goods and services, consumption, customs and import duties, and all similar levies, duties, and taxes imposed at any time (now or in the future) by any relevant jurisdiction Taxes in connection with this Agreement or the purchase, sale, resale, or provision of any services pursuant to this Agreement (collectively, "Taxes"). Referring Party is responsible for taxes based on its net income, employment taxes regarding its personnel, applicable social taxes, and for taxes on any property it resells and similar duties and levies.

2.3.4 Expenses. Both Parties shall be solely responsible for their own, and shall pay, any out-of-pocket expenses that each incurs in connection with any referral opportunities described in this Agreement.

2.3.5 Payment Information. If Referring Party is to receive payments pursuant to this Agreement, Referring Party shall promptly provide Engaging Party with any documentation reasonably required by Engaging Party, including, for example, a W-9.

3. GENERAL TERMS FOR REFERRED CUSTOMERS

3.1 General Duties. Referring Party shall at all times in connection with this Agreement and the Services report any Customer complaints regarding the Services to the Engaging Party for the Engaging Party to exclusively provide support.

3.2 Pricing. While the Engaging Party may consult with the Referring Party regarding any particular Referred Customer, the Engaging Party will control all aspects of pricing. Engaging Party may adjust pricing for their respective services in its sole discretion at any time.

4. TRADEMARKS

4.1 Trademarks. A Party shall not use, or permit anyone under their control to use, any trademarks, service marks, trade names or logos of the other Party (collectively, “Marks”), except that a Party shall have the right to use such Marks solely in connection with the marketing of the other Party’s Services pursuant to this Agreement and only in such manner as expressly approved in advance and in writing by the other Party, provided that Company approves NexHealth using Company marketing materials in connection with NexHealth’s marketplace.   

5. TERMINATION

5.3 Termination. Either Party may terminate this Referral Agreement at any time upon six (6) month’s notice, with or without cause, by giving the other party written notice of termination.  The Referring party is eligible to earn Referral Commissions only for orders that are placed by Referrals during the Agreement Term, and Commissions earned through one year after Termination will remain payable. Engaging Party may withhold Referring Party’s final payment for a reasonable time to ensure that the correct amount is paid.

5.3.1 No Termination Liability. Each Party understands that the rights of termination hereunder are absolute. Neither Party shall incur any liability, or be obligated to pay any compensation, whatsoever for any damage (including, but not limited to, damage to or loss of goodwill or investment), loss or expenses of any kind suffered or incurred by the other Party as a result of, arising from, or incident to any termination of this Agreement made in accordance with the terms of the Agreement (including any fees that would have otherwise been due to the other Party), regardless of whether such Party is aware of the possibility of any such damage, loss or expenses.

5.3.2 Effect of Termination or Expiration. Except as otherwise provided in the Agreement, upon termination or expiration of this Agreement:

5.3.2.1 All rights and licenses granted under this Agreement will immediately cease;

5.3.2.2 Each Party will immediately stop using and either destroy or delete any Confidential Information provided by the other Party under this Agreement, other than Confidential Information in automatic computer backups or that must be retained for regulatory, legal, or audit purposes or for compliance with its document retention policies, provided that any retained Confidential Information will be subject to the confidentiality provisions of this Agreement as long as it is retained; and

5.3.3 Those provisions of this Agreement that by their nature should survive termination or expiration will survive, including, but not limited to, ownership provisions, confidentiality, disclaimers, indemnities, and limitations of liability.

5.2 Modification. NexHealth may modify this Marketplace Referral Agreement by providing written notice to Company of those modifications at least 30 days prior to the effectiveness of the modifications.

6. LIMITATIONS OF LIABILITY

6.1 Exclusion of Claims. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, OR LOST PROFITS DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE, INCLUDING DAMAGES FOR LOSS OF DATA, GOODWILL, INVESTMENTS, USE OF MONEY OR USE OF FACILITIES, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK, OR IMPAIRMENT OF OTHER ASSETS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF (I) THE PERFORMANCE OR NONPERFORMANCE OF THE AGREEMENT OR OF PRODUCTS, SOFTWARE, SERVICES PROVIDED UNDER THE AGREEMENT, OR (II) ANY CLAIM, CAUSE OF ACTION, BREACH OF CONTRACT, INDEMNITY, OR ANY EXPRESS OR IMPLIED WARRANTY, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT. THE PREVIOUS SENTENCE WILL NOT APPLY TO A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 5 (CONFIDENTIALITY) OR AN INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS SET FORTH IN SECTION 4 (PROPRIETARY RIGHTS).

6.2 Limitation of Liability. Engaging Party’s aggregate liability will not exceed the fees paid or payable by Engaging Party to Referring Party under the Agreement in the six-month period immediately preceding the event giving rise to the claim. The previous sentence does not apply to a Party’s confidentiality obligations set forth in API License Agreement, to a Party’s obligations to pay fees and expenses when due and payable, or to any infringement or misappropriation by a Party of any Intellectual Property rights of the other Party.

6.3 Limitation of Claims. Except with respect to claims of infringement or misappropriation of any Intellectual Property or misuse of Confidential Information (defined in the API License Agreement), neither Party may bring any claim relating to the Agreement more than one year after the events giving rise to the claim occurred.

6.4 Additional Rights. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some or all of the above exclusions or limitations may not apply and the Parties may have additional rights.

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