Vendr+ Partner Enrollment Agreement

This Vendr+ Partner Enrollment Agreement (the “Agreement”) is between Vendr, Inc., a Delaware corporation with its principal place of business located at 501 Boylston Street, 10^th Floor, Boston, MA 02116 (“Vendr”) and the entity listed below (“Client”) and is effective as of the date last signed by the parties (the “Effective Date”). The parties hereby agree as follows:

1)   VENDR+ PROGRAM

1.1 Vendr+ Program. Subject to the terms and conditions of this Agreement, Client will join the Vendr+ Program where Vendr shall perform certain professional services for Client, including Vendr referring Vendr customers to Client or assisting with Client sourced Vendr customers (each a “Vendr Buyer”) to purchase Client’s respective products and/or services (as applicable) (the “Client Products”) as part of the service (the “Vendr+ Program”) as mutually agreed to and set forth in one or more mutually executed order forms (each, an “Order”). The Vendr+ Program is further described in Exhibit A. The first Order between the parties is attached as Exhibit B. Client acknowledges and agrees that Vendr shall have sole discretion in staffing the Vendr+ Program and Vendr shall remain liable for all acts and omissions of such its employees. 

1.2 Ownership. Vendr owns all right, title, and interest in and to the Vendr+ Program, and all software, tools, materials, specifications, ideas, concepts, inventions, processes, techniques, know-how, deliverables, and work product used or developed by Vendr in connection with its performance of Vendr+ Program. In the event Client provides Vendr with any feedback or suggestions related to the Vendr+ Program (“Feedback”), Client grants Vendr a royalty-free, fully-paid-up, perpetual, irrevocable right and license to use Feedback for any lawful purposes, including without limitation incorporating Feedback into the Vendr+ Program provided that such Feedback does not include any Client Confidential Information. Any Feedback is provided for “as is.” No rights are granted to Client hereunder other than as expressly set forth herein.

1.3 Client Responsibilities; Other Service Providers. Client shall: (a) designate at least one (1) employee with knowledge of Client’s business as its primary contact to be available for communication with Vendr in providing the Vendr+ Program; (b) provide Vendr with accurate and complete information and timely decisions and approvals, upon which Vendr will be entitled to rely; and (c) provide Vendr with such reasonable assistance as Vendr may reasonably request, including by making available to Vendr, at no charge, appropriate personnel and information reasonably required by Vendr for the performance of the Vendr+ Program. 

1.4 Fees. Client shall pay Vendr Service Fees (as defined further in the Order Form) for the Vendr+ Program in an amount equal to and in accordance with the terms contained in each Order. Unless otherwise agreed to in an Order, all undisputed Service Fees are due within the number of days specified in the Order from Client’s receipt of invoice payable in United States dollars. Unless otherwise set forth herein, all Fees are non-cancelable and non-refundable. In the event any Service Fees are subject to a good faith dispute by Client, Client shall notify Vendr in writing within thirty (30) days of Client’s receipt of the respective invoice outlining the reasons for such good faith dispute, and pay all undisputed Fees pending the outcome of the dispute resolution.  The Service Fees are exclusive, and Client will be solely responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Vendr+ Program (excluding taxes based solely on Vendr’s income). In the event Client is subject to withholding taxes, Client shall gross up its payment to Vendr such that Vendr receives the full amount listed in the applicable invoice.  

2) REPRESENTATIONS AND WARRANTIES.

2.1 Mutual Representations and Warranties. Each party represents and warrants that: (a) it is an entity in good standing in the jurisdiction in which it is registered; (b) it has full right, power, and authority to enter into this Agreement and to bind itself to the terms and conditions herein, and that it is not a party to any other agreement that conflicts with its ability to enter into this Agreement; and (c) it will comply with all applicable federal, state, and local laws and regulations in respect to its performance of its obligations hereunder.

2.2 WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT, THE VENDR+ PROGRAM ARE PROVIDED “AS IS”, AND VENDR EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. VENDR MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE VENDR+ PROGRAM.

3) TERM AND TERMINATION. The term of this Agreement will commence on the Effective Date and continue for as long as there is at least one active Order, unless earlier terminated as provided herein (the “Term”) and this Order shall automatically renew on an annual basis unless either party provides thirty (30) days' prior written notice before the end of the then current Term. Either party may terminate this Agreement:

i) For Cause: if the other party breaches any material provision of the Agreement and does not cure such breach within thirty (30) days following written notice to the breaching party; or

ii) For Convenience: for any reason or no reason at all, upon sixty (60) days' prior written notice to the other party. 

iii) Termination for Insolvency: If either party becomes insolvent, files for bankruptcy, or is unable to pay its debts, the other party may terminate this contract immediately upon written notice.

For the avoidance of doubt, Client remains obligated to pay Service Fees related to any introductions made to Client by Vendr during the Term that results in a Customer Contract entered into between Client and Vendr Buyer as a result of such introduction within the timeframe set forth in the respective Order(s). Sections 1.2, 1.4, and 3-7, shall survive the termination of this Agreement.

4) CONFIDENTIALITY. 

4.1 From time to time during the Term, either party (as the “Discloser”) may disclose or make available to the other party (as the “Recipient”) certain non-public information, including with respect to the Discloser’s  business affairs, confidential intellectual property, products, Vendr+ Program,  research, developments, designs, financial or pricing information, customers, or the terms of this Agreement, whether orally or in written, electronic or other form or media, in each case that is marked confidential or should otherwise reasonably be understood to be confidential in light of the nature of the information and circumstances of its disclosure (collectively, “Confidential Information”). Confidential Information shall not include information that, at the time of disclosure and as established by documentary evidence by the Recipient: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section by the Recipient or any of its employees, contractors or agents; (b) is or becomes available to the Recipient on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of the Recipient or its employees, contractors or agents before being disclosed by or on behalf of the Discloser; or (d) was or is independently developed by the Recipient without reference to or use, in whole or in part, of any of the Discloser’s Confidential Information. 

4.2 The Recipient shall: (i) protect and safeguard the confidentiality of the Discloser’s Confidential Information with at least the same degree of care as the Recipient would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use the Discloser’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any person or entity, except to the Recipient’s employees, contractors and agents who need to know the Confidential Information to assist the Recipient, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. The Recipient shall be responsible for any breach of this Section caused by any of its employees, contractors or agents. At any time during or within thirty (30) days after the Term, and at the Discloser’s written request, the Recipient will promptly return to the Discloser all copies, whether in written, electronic or other form or media, of the Discloser’s Confidential Information, or, at the Recipient’s election, destroy all such copies and confirm in writing to the Discloser that such Confidential Information has been destroyed; provided, however, the Recipient may retain Confidential Information in accordance with its standard backup or record retention policies or as required by law. 

4.3 In addition to all other remedies available at law, the Discloser may seek equitable relief (including injunctive relief) against the Recipient to prevent the breach or threatened breach of this Section and to secure its enforcement. In the event the Recipient is required to disclose the Discloser’s Confidential Information under applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction, then the Recipient may disclose such Confidential Information, so long as the Recipient (to the extent not legally prohibited) gives reasonable advance notice to the Discloser in advance of such disclosure, seeks confidential treatment of such information from the entity to which the disclosure is made, and discloses only that information which is legally required to be disclosed.  

4.4 Vendr shall maintain, use and process any relevant data in compliance with its Data Processing Addendum available at https://www.vendr.com/data-processing-addendum, which is hereby incorporated and made part of this Agreement.  

5) INDEMNIFICATION.  

5.1 Vendr Indemnification.  Vendr shall indemnify, defend, and hold harmless Client and its Affiliates, and the respective officers, directors, employees, and agents of the foregoing entities from and against any third party action, claim, suit, demand, cause of action, allegation, damages, losses, costs and expenses (including reasonable outside attorneys’ fees) finally awarded or agreed to in a settlement (each, a “Claim”) brought against Client to the extent that the Claim is based upon Vendr’s: (a) breach of any representations and warranties contained in this Agreement; and (b) Vendr’s alleged gross negligence or willful misconduct.

5.2 Client Indemnification. Client shall indemnify, defend, and hold harmless Vendr and its Affiliates, and the respective officers, directors, employees, and agents of the foregoing entities from any Claim brought against Vendr to the extent the Claim is based upon Client’s: (a) breach of any representations and warranties contained in this Agreement; and (b) Client’s alleged gross negligence or willful misconduct. 

5.3 Indemnification Procedure. The obligations provided in this Section 5 are conditioned on the party seeking indemnity (“Indemnified Party”): (a) providing prompt written notice of the Claim to the party from whom indemnification is sought “Indemnifying Party”); (b) providing the Indemnifying Party sole control of the defense and settlement of the Claim including selection of counsel (it being understood that the Indemnifying Party shall not settle any Claim where such settlement attributes culpability to the Indemnified Party or imposes any liability upon the Indemnified Party, without the Indemnified Party’s prior written consent); and (c) providing the Indemnifying Party all reasonable assistance requested by the Indemnifying Party, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense of the Claim at its own expense.

6) LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. EXCEPT WITH RESPECT TO A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD, IN NO EVENT SHALL EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN THE AGGREGATE THE TOTAL AMOUNT PAID OR PAYABLE BY CLIENT UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH CLAIMS. THE FOREGOING SHALL NOT LIMIT CLIENT’S UNDISPUTED PAYMENT OBLIGATIONS UNDER ANY ORDER.

7) GENERAL PROVISIONS.

7.1 Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party, such consent not to be unreasonably withheld, conditioned or delayed; provided, however, that either party may assign this Agreement to an Affiliate, or in connection with the reorganization, or merger or sale of all or substantially all of its assets and/or stock. Any attempted assignment or delegation in violation of this Section will be null, void and of no effect. For purposes of this Section 7.1, “Affiliate” shall mean an entity controlled by, controlling, or under common control with a party.

7.2 Notices. Any notice required or permitted hereunder shall be in writing and will be deemed to have been duly given if delivered personally; delivered by reputable overnight courier; mailed by first-class, registered or certified U.S. mail, postage prepaid to the address in the opening paragraph; or by email: (i) in the case of Client receiving notice, to the email designated in the applicable Order; and (ii) in the case of Vendr receiving notice, to legal@vendr.com.

7.3 Miscellaneous. No failure to exercise, and no delay in exercising, on the part of either party, any privilege, any power or any rights hereunder will operate as a waiver thereof, nor will any single or partial exercise of any right or power hereunder preclude further exercise of any other right hereunder. Neither party will be liable to the other for any failure or delay in the performance of such party’s non-monetary obligations due to causes beyond its control, such as failure or delay caused, directly or indirectly, by fire, flood, earthquakes, other elements of nature, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, epidemics, communications line or power failures, or governmental laws, court orders, and regulations imposed after the fact. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is governed by and construed under the laws of the State of Delaware, without regard to its conflict of laws principles. Any claim, suit, controversy, or cause of action arising under or relating to this Agreement shall be brought in the state or federal courts located in New Castle County, Delaware, and the parties agree to the exclusive personal jurisdiction of such courts. Any waivers hereunder or amendments to this Agreement shall be effective only if made in writing and signed by a representative of each party authorized to bind such party. This Agreement, along with any Order(s), constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or contemporaneous agreements concerning such subject matter, written or oral. The relationship between the Parties is that of an independent contractor, and nothing in this Agreement is intended to, or shall be construed to, create a partnership, agency, joint venture, employment or similar relationship. This Agreement may be executed by electronic means and in counterparts, which taken together shall form one legal instrument. For purposes of this Agreement the word “including” and correlative terms means inclusion without limitation.