CITRIX SAAS REFERRAL PARTNER PROGRAM AGREEMENT

Updated on October 3, 2016

IMPORTANT – READ CAREFULLY:

PARTICIPATION IN THE CITRIX SAAS REFERRAL PARTNER PROGRAM (THE “REFERRAL PROGRAM”) IS GOVERNED BY THIS CITRIX SAAS REFERRAL PARTNER PROGRAM AGREEMENT (“AGREEMENT”), WHICH IS A LEGAL AND BINDING INSTRUMENT EFFECTIVE AS OF THE DATE ON WHICH THE AUTHORIZED PARTY ACCEPTING THIS AGREEMENT (“REFERRAL PARTNER”) COMPLETES THE ELECTRONIC ACCEPTANCE PROCESS AND CLICKS THE "ACCEPT" BUTTON. THE AUTHORIZED PARTY ELECTRONICALLY ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT IT HAS THE AUTHORITY TO BIND REFERRAL PARTNER AND HAS READ, UNDERSTANDS AND AGREES TO THE TERMS AND CONDITIONS OF THE REFERRAL PROGRAM AND THIS AGREEMENT.

1. DEFINITIONS.
   1. “Active Account Period” means a minimum of thirty (30) consecutive days and a maximum of twelve (12) months from the date a Customer signs up for a Subscription to the Citrix Services.
   2. “Calendar Quarter” means the end of each quarter during the calendar year and specifically March 31, June 30, September 30 and December 31, respectively.
   3. “Citrix” means the Citrix contracting entity identified in Section 10.14 below.
   4. “Citrix Marks” means any name, logo or mark belonging to Citrix or its affiliates.
   5. “Citrix Services” aka “Services” means for purposes of this Referral Program the generally available Citrix software-as-a-service offerings, as further described in the Service Descriptions, known as Podio, RightSignature, ShareConnect and ShareFile, respectively. Citrix may update the Citrix Services at any time and all Citrix Services set forth in the Service Descriptions may not be available to all Customers. The Services are for professional/business use only.
   6. “Confidential Information” means confidential or proprietary information of Citrix or Referral Partner, as the case may be, including, without limitation, customer information, pricing information and any software and other technical information (including source code, object code, audiovisual components (menus, screens, structure and organization), human or machine readable forms of software, functional and technical specifications, designs, drawings, analysis, research, processes, computer programs, methods, ideas, "know-how" and the like), business information (sales and marketing research, materials, plans and the like) and other information designated as confidential expressly or by the circumstances in which it is provided.  Confidential Information does not, however, include: (i) information already known or independently developed by the recipient; (ii) information in the public domain through no wrongful act of the recipient; or (iii) information received by the recipient from a third party who was free to disclose it.
   7. “Customer” means any customer identified by Referral Partner pursuant to this Agreement.
   8. “Customer Information” means any Customer information, including referral information, delivered by Referral Partner to Citrix pursuant to activities contemplated under this Agreement.
   9. “Direct Sale” means any sale of the Citrix Services to a Customer that directly results from Referral Partner’s performance of its obligations under this Agreement; provided, however, that sales through the Citrix website or other Citrix online sales channels shall be excluded from the definition of a Direct Sale.
   10. “Effective Date” means the date this Agreement is electronically accepted by Referral Partner. 
   11. "Lead” means an identified opportunity to sell Citrix Services to a potential Customer.
   12. “Qualified Referral” means a Customer that satisfies the following requirements. The Customer must: (i) not be a current customer of Citrix; (ii) be confirmed as a Registered Lead; (iii) sign up for a Subscription to one or more of the Citrix Services as a direct result of the Referral Program; (iii) maintain an active account for the applicable Subscription for the duration of the Active Account Period; and (iv) timely pay all applicable Subscription Fees.     
   13.  “Referral Fee” means an amount equal to fifteen percent (15%) of the Subscription Fees, inclusive of any discounts, received from the Qualified Referral during the Active Account Period.  
   14.  “Registered Lead” means for a Direct Sale, a Lead submitted by Referral Partner to a Lead registration page designated by Citrix. Citrix shall have sole discretion to review and validate all Registered Leads.
   15.  “Service Descriptions” means the overview and other terms applicable to the Citrix Services, as amended from time to time.
   16.  “Subscription” means a Customer purchase of one or more of the Citrix Services available for referral through the Referral Program.
   17. “Subscription Fee(s)” means for a Direct Sale, the total amount of fees billed to and paid by Customer for Citrix Services for the applicable Subscription during the Active Account Period, excluding taxes, refunds, credits, and charge-backs.
   18. “Terms of Service” means the standard terms and conditions for the use of Citrix Services as may be modified from time to time, or such other written agreement entered into between Citrix and Customer.
2. RIGHTS AND OBLIGATIONS.
   1. Referral Partner Rights.  Citrix appoints Referral Partner as a non-exclusive partner to market and promote the Citrix Services on the terms and subject to the conditions in this Agreement. In no event is Referral Partner authorized to distribute Citrix Services, or any other Citrix products or services for resale or otherwise obligate Citrix to provide Citrix Services to any third party.
   2. Referral Partner Obligations.  Referral Partner shall have the following obligations under this Agreement: 

1. Compliance with Agreement and Laws.  Referral Partner must at all times comply with the provisions of this Agreement and applicable laws in order to participate in the Referral Program.  Referral Partner shall, at all times, act in good faith and shall not engage in any fraudulent activities.
2. Lead Submission.  In order to qualify under this Agreement, any Registered Lead must originate from the specific Citrix Lead registration Web page and result in a Direct Sale.
   1. Referral Partner Representations.  Referral Partner shall not make any representation or warranty about the Citrix Services or the rights granted hereunder that is contrary to any term or condition in this Agreement or the Terms of Service.
   2. Customer Information.  Referral Partner will maintain all Customer Information records and deliver such Customer Information to Citrix as required for purposes of the Referral Program. Citrix shall maintain records of all Customer Information delivered by Referral Partner to Citrix as a result of Referral Partner’s performance pursuant to this Agreement.  All Customer Information shall be jointly owned by Referral Partner and Citrix and, pursuant to such ownership, may be used by either party in any manner deemed appropriate subject to (i) each party’s published privacy policies then in effect, and (ii) all privacy and data protection laws and regulations applicable to the gathering, processing, storage and transmission of the Customer Information.
   3. Expenses.  Referral Partner will be solely responsible for its own expenses, and those of its employees, including, but not limited to, all expenses incurred in the promotion, demonstration, installation, and/or marketing of the Citrix Services and participation in the Referral Program.
   4. Citrix Ownership.  All rights related to the Citrix Services not expressly granted herein are reserved by Citrix.
   5. Citrix Service Fees and Customer Agreement.  Citrix reserves the right in its sole discretion to determine pricing for the Citrix Services and to change the list price at any time. Citrix shall have the exclusive right to determine terms and conditions for marketing and promotion of the Citrix Services to Customers.  Delivery of Citrix Services to any Customer shall be conditioned on each such Customer accepting the Citrix standard Terms of Service then in effect. 
   6. Additional Terms of Use. Participation in the Referral Program may require acceptance of additional terms that supplement or modify this Agreement. Referral Partner shall be subject to any such additional terms of use as a condition of continued participation in the Referral Program in accordance with any such additional terms of use in addition to this Agreement.

3. FEES.
   1. Referral Fee.  For each Customer that is determined to be a Qualified Referral by Citrix under the terms of this Agreement, Citrix will pay Referral Partner a Referral Fee.
   2. Referral Fee Payment.  Citrix shall invoice Customers directly for, and shall be entitled to retain all Subscription Fees collected from Customers for use and implementation of the Citrix Services.  Citrix will pay any applicable Referral Fee to Referral Partner quarterly in arrears based on the Subscription Fees received by Citrix from the Qualified Referral during the prior Calendar Quarter. Any Referral Fee payment shall be: (i) in U.S. dollars only, (ii) by ACH/direct debit, (iii) by wire transfer for payment outside of the U.S. (additional fees may apply) and, (iv) in an aggregate amount owed for the prior Calendar Quarter.  Referral Partner is responsible for fees and expenses associated with payment
   3. Referral Partner Fee Reimbursement.  Citrix may recoup any Referral Fee payments made to Referral Partner if Referral Partner engages in fraud or acts of intentional misconduct in connection with the reporting of any Registered Leads. If triggered, then to the fullest extent permitted by law, Citrix may deduct from all or a portion of any future Referral Fee payments any amounts owed for Referral Fee payments made in violation of this Section 3.3 until Citrix is fully reimbursed.
4. TRADEMARKS. During the Term (as defined in Section 8 below) and subject to the terms and conditions of this Agreement, Citrix and Referral Partner shall each have the right to identify Referral Partner as a Citrix “Referral Partner” and Referral Partner may refer to the Citrix Services using the Citrix Marks. Any other use shall require Citrix prior written consent.  For any authorized use of the Citrix Marks, Referral Partner represents that it has reviewed and will adhere to Citrix Trademark & Copyright Guidelines, incorporated herein by reference and as may be periodically updated by Citrix. Referral Partner agrees that it shall not register or apply for registration of any trademark, service mark, business name, company name or trade name, domain name or social media account name or handle which is comprised of or incorporates in whole or in part any Citrix Mark, or is otherwise confusingly similar to a Citrix Mark.  Referral Partner agrees that it will do all things necessary to effect the transfer of any such same or similar trademark, service mark, business name, company name or trade name, domain name or social media account name or handle to Citrix, including but not limited to executing assignment documentation.  Except as expressly granted herein, Citrix does not grant any rights to any of Citrix copyrights, patents, trademarks (whether registered or unregistered), trade secrets or trade names, and in no event will such a grant be implied.
5. CONFIDENTIALITY.
   1. Obligations.  Each party acknowledges that it may receive Confidential Information of the other party during the performance of its respective obligations under this Agreement. With respect to the other party's Confidential Information, the recipient hereby agrees that during the Term of this Agreement and for two (2) years thereafter, it shall maintain such Confidential Information in confidence and shall not use, commercialize, publish, transfer, report or disclose such Confidential Information to any person or entity, except to its own employees, representatives and agents having a “need to know” (and who are themselves bound by similar nondisclosure restrictions), and to such other recipients as the other party may approve in writing; provided that all such other recipients shall have first executed a confidentiality agreement. Neither party nor any recipient may alter or remove from any software or associated documentation owned or provided by the other party any proprietary, copyright, trademark, service mark or trade secret legend. Each party shall use at least the same degree of care in safeguarding the other party's Confidential Information as it uses in safeguarding its own Confidential Information, but in no event less than reasonable care.
   2. Injunctive Relief.  The parties acknowledge and agree that an actual or potential violation of either party’s trademark or other intellectual property rights, obligations with respect to Confidential Information, or a failure by Referral Partner to comply with Section 2.2(a) (Compliance with Agreement and Laws), may cause irreparable harm to the other party for which a remedy at law would be inadequate.  In the event of any threatened or actual violation of the material provisions of this Agreement, each party shall be entitled to seek injunctive relief or other equitable remedies in all legal proceedings in the event of any threatened or actual violation of any or all of the material provisions of this Agreement.
6. LIMITED WARRANTY. Any warranty relating to the Citrix Services shall be provided in accordance with the Terms of Service entered into between Citrix and the Customer. Citrix makes no warranties to Referral Partner, whether express or implied, with respect to the Citrix Services, or any other matters relating to this Agreement or the Referral Program.
7. INDEMNIFICATION. Referral Partner hereby agrees, at its sole expense, to indemnify, defend and hold Citrix harmless from and against any and all losses, liabilities, claims, costs, fines, and damages of any type (including attorneys’ fees) arising out of or in any way related to the Referral Partner’s breach of its obligations or any of the terms of this Agreement, and/or Referral Partner’s participation in the Referral Program.
8. TERM AND TERMINATION.
   1. Term.  This Agreement shall commence on the Effective Date and continue for a twelve (12) month term (“Initial Term”) and thereafter, shall automatically renew for additional twelve (12) month terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless earlier terminated pursuant to this Section 8.
   2. Termination.  Either party may terminate this Agreement for any or no reason upon thirty (30) days’ prior written notice to the other party; provided, however, a party may terminate this Agreement in the event of a breach that remains uncured for fifteen (15) days following receipt of notice by the non-breaching party. Notwithstanding the foregoing, either party may terminate this Agreement immediately in the event of a breach by Referral Partner of Section 2 (Rights and Obligations), or 4 (Trademarks), or a breach by either party of Section 5.
   3. Termination for Inactivity. Notwithstanding any other provision to the contrary, Citrix shall have sole discretion to terminate this Agreement and deactivate Referral Partner’s account in the Referral Program after six (6) months of inactivity.
   4. Effect of Termination. Upon termination of this Agreement for any reason, Referral Partner will (i) immediately discontinue all marketing and promotion of the Citrix Services, and (ii) cease to represent in any form that it is a “Referral Partner” of Citrix. Each party additional agrees to destroy or return all Confidential Information of the other party in its possession. Neither party shall be liable for any damages resulting from a termination of this Agreement as provided for herein; provided, however, termination of this Agreement shall not affect any claim arising prior to such termination.  Citrix shall pay to Referral Partner any Referral Fees earned prior to the effective date of termination, but Referral Partner shall not be entitled to payment of any Referral Fee following the effective termination date.
   5. Customer Agreements. Termination of this Agreement shall not affect the term, validity or enforceability of any separate contract between Citrix and a Customer then in effect.
   6. Survival.  Sections 2.6 (Citrix Ownership), 5 (Confidentiality), 7 (Indemnification), 8.4 (Effect of Termination), 8.5 (Customer Agreements), 9 (Limitation of Liability), and 10 (General) shall survive any termination of this Agreement.
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL CITRIX BE LIABLE TO REFERRAL PARTNER AND/OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY AND/OR OTHER DAMAGES RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION AND WHETHER DIRECT OR INDIRECT, LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY, LOST PROFITS, COSTS OF RECOVERY OR ANY OTHER DAMAGES), HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND WHETHER OR NOT FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), VIOLATION OF STATUTE OR OTHERWISE, AND WHETHER OR NOT CITRIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CITRIX LIABILITY HEREUNDER IS LIMITED TO TOTAL AMOUNT PAID AND OWING TO REFERRAL PARTNER HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE ON WHICH THE CLAIM AROSE. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO REFERRAL PARTNER.
10. GENERAL.
    1. Authority.  Each party hereby represents and warrants to the other party that it has all necessary authority to enter into and perform its obligations under this Agreement, and that the performance of its obligations hereunder will not result in the breach of any agreement with any third party.
    2. Assignment.  Neither party may transfer or assign this Agreement, in whole or in part, without the prior written consent of the other party, which consent shall not be unreasonably withheld; provided, however, that Citrix may assign this Agreement, in whole or in part, or any or all of its rights or obligations hereunder, without obtaining Referral Partner’s written consent to: (i) a successor company resulting from a merger, consolidation, or non-bankruptcy reorganization or a purchaser of all or substantially all of Citrix assets, (ii) any present or future parent, subsidiary or other affiliate of Citrix, or (iii) any person or entity in connection with the sale, disposition or other transfer of that part of the business of Citrix to which this Agreement relates (including, without limitation, an entity resulting from a spin-off transaction of any subsidiary, business unit or product line of Citrix or any of its affiliates, or any purchaser of all or substantially all of the assets or equity of such subsidiary, business unit or product line).  In the event that Citrix assigns certain, but not all of its rights and obligations under this Agreement, Referral Partner agrees, at Citrix or the permitted assign’s request, to enter into a new agreement on the same terms and conditions to the extent applicable to the assigned portions hereof.  This Agreement shall be binding upon and shall inure to the benefit of each party’s permitted assigns.  Any unauthorized assignment shall be void. 
    3. No Waiver.  The failure of any party in any one or more instance to insist upon strict performance of any of the terms of this Agreement will not be construed as a waiver or relinquishment of the right to assert or rely upon any such terms on any future occasion.
    4. Notices.  All legal notices required under this Agreement shall be in writing and delivered in person or by certified or registered express mail to the address designated for Referral Partner and the Citrix contracting entity as specified below, or such other address as either party may specify by notice to the other party as provided herein. Notice shall be deemed given (i) upon personal delivery; (ii) if delivered by air courier or email, upon confirmation of receipt; or (iii) five (5) days after deposit in the mail. Non-legal notices may be provided to the email address specified for each respective party and shall be deemed effective on the next business day following the date and time stamp on the sender’s email.  Citrix may also provide Referral Partner with notice postings on the Referral Partner Program website.  A copy of all Referral Partner legal notices must also be sent to Citrix Business Development Department, 120 S. West Street, Raleigh, North Carolina 27603 USA.
    5. Entire Agreement.  This Agreement sets forth the entire agreement and understanding between the parties relating to the subject matter of this Agreement and supersedes all prior or contemporaneous oral or written agreements (excluding any subscription agreements for the use of Citrix Services unrelated to the referral activities contemplated by this Agreement).  The terms of this Agreement may be updated at any time and Referral Partner’s continued participation shall be deemed an acceptance of the then-current terms. For any conflict between the terms of this Agreement and the Referral Partner Program, the conflict shall be resolved in that order.
    6. Force Majeure. Neither party will be responsible for any delay, interruption or other failure to perform under this Agreement due to force majeure acts beyond a party’s reasonable control, but only for so long as such conditions persist.  Force majeure events may include: natural disasters; wars; terrorist activities; activities of local exchange carriers, telephone carriers, wireless carriers, and Internet service providers; labor disputes; and acts of government.
    7. Independent Contractor.  Citrix and Referral Partner are independent contractors. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, franchise, employment or agency relationship between the parties. Referral Partner hereby agrees that it shall inform its customers that it is an independent business from Citrix, and shall not hold itself out otherwise or as an employee of Citrix, or attempt to bind Citrix to any third-party agreement.
    8. Attorney’s Fees.  In the event of any legal proceeding between the parties arising from this Agreement, the prevailing party will be entitled to recover, in addition to any other relief awarded or granted, its reasonable costs and expenses (including court costs and reasonable fees for attorneys, accountants and expert witnesses) incurred during the proceeding.
    9. Foreign Corrupt Practices Act.  Referral Partner and its employees and agents shall not directly or indirectly make an offer, payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing any act or decision of an official of any government (including a decision not to act) or inducing such a person to use his influence to affect any governmental act or decision in order to assist Citrix in obtaining, retaining or directing any such business.
    10. International Distribution.  Referral Partner shall not facilitate the export or re-export any Citrix Services, related documentation, or technical data of Citrix to any country, person, entity or potential Customer to which such export would be a violation of any applicable export restriction.  Restricted countries for the purposes of United States law and regulations currently include: Cuba, Iran, Myanmar, North Korea, Sudan and Syria, and additional countries as may be updated by U.S. law from time to time.
    11. Publicity.  Neither party shall make any disclosures concerning the commercial relationship between Citrix and Partner without the other party’s prior written consent unless otherwise permitted by this Agreement. Notwithstanding the foregoing, Citrix may use Referral Partner’s marks on its website, subject to Referrals Partner’s reasonable approval.
    12. Captions and Headings. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement.
    13. Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect.
    14. Contracting Party, Choice of Law and Location for Resolving Disputes.  This Agreement is between Referral Partner and the Citrix contracting entity for Referral Partner’s country or region as set forth below and the choice of law and the location for resolving disputes (including non-contractual disputes and claims) shall be as set forth below: