Ngage Referral Program Terms and Conditions

This Referral Program Terms and Conditions (“Terms and Conditions”) is an agreement between Referral Partner and MH Sub I, LLC, dba Ngage (“Ngage”). By signing a Referral Partner Form, Referral Partner will be bound by these Terms and Conditions. The Referral Partner Form and these Terms and Conditions, which may be updated from time to time, are collectively, the “Agreement”. Capitalized terms not defined herein have the meanings set forth in the Referral Partner Form. In the event of an inconsistency between a term or condition contained in any component document(s) comprising this Agreement (but only to the extent of the inconsistency) the order of precedence, from the most to the least controlling will be (1) any mutually agreed upon addendum, (2) Referral Partner Form and (3) the Terms and Conditions.

1. Referral Fees. Ngage will pay Referral Partner the undisputed referral fees set forth in the applicable Referral Partner Form. The Referral Partner understands and agrees that it will not earn any referral fee unless and until the Customer signs a binding contract with Ngage and Ngage receives payment in full from the Customer. The Referral Partner will not be entitled to any referral fee for the applicable Customer if the Customer has previously registered with, contacted or done business with Ngage. Ngage may change the referral fees at any time by providing at least two weeks written notice (email sufficient) prior to the referral fee change taking effect. By continuing to refer potential Customers to Ngage after a referral fee change, Referral Partner will be deemed to have accepted the new referral fees. “Customer(s)” means any business entity or individual referred by the Referral Partner to Ngage who enters into a binding contract with Ngage for the subscription of Ngage’s services within ninety (90) days from the date of the referral to Ngage because of Referral Partner’s recommendation, and Ngage receives payment in full as provided in the contract with such Customer.

2. Payment. Ngage will pay any undisputed referral fees due to Referral Partner within thirty (30) days of receipt of payment in full from the Customer as provided in the contract with such Customer. In certain instances, in the interest of fairness, the compensation payable for a referred sale may be subject to allocation between or among more than one referral partner. By way of illustration only, and not limitation, such a compensation split may be appropriate when more than one referral partner has played a part in originating or finalizing a sale, i.e., shares in procuring the sale. If Ngage does not receive full payment or there is a chargeback from a Customer for any sale on which compensation has already been paid to Referral Partner, Ngage may recover such compensation overpayment from Referral Partner through an offset against future payments owed to Referral Partner. All decisions relating to commission splits, offsets and any other aspect of administering the referral fees will be made by Ngage.

3. Non Exclusive. This Agreement does not grant exclusive rights to the Referral Partner to act as referrer on behalf of Ngage and the Referral Partner will have no rights under any other agreements entered into by Ngage with other referral partners.

4. Representations and Warranties. Referral Partner is solely responsible for all expenses related to referral methods to Customers. Referral Partner will not represent itself as an agent or employee of Ngage. Referral Partner will not make any representations, promises or expressed or implied warranty regarding Ngage, on Ngage’s behalf, or regarding any of Ngage’s services, unless authorized by Ngage in writing to do so. Referral Partner represents and warrants that it will not engage in any deceptive, misleading, illegal or unethical practices that may be detrimental to Ngage or its services and will comply with all applicable federal, state and local laws and regulations while operating under this Agreement.

5. Ngage Trademarks. The Referral Partner may make use of Ngage name and trademarks for the sole purpose of promoting Ngage’s services on a non-exclusive basis. Any such use will be in accordance with Ngage’s trademark policies, which may be modified by Ngage from time to time. Except as set forth in this Section 5, this Agreement does not grant the Referral Partner any ownership or interest in Ngage’s trademarks or intellectual property rights. All goodwill arising from use of Ngage’s trademarks will insure solely to the benefit of Ngage. Upon termination of this Agreement, Referral Partner will immediately cease all use of Ngage’s trademarks.

6. Confidentiality. Ngage may disclose to Referral Party certain confidential or propriety information or trade secrets not commonly known to the general public (the “Confidential Information”). Confidential Information includes all information provided by Ngage pursuant to this Agreement and all other sales reports and customer information received from Ngage under this Agreement. Confidential Information includes any information disclosed by Ngage to Referral Partner, either directly or indirectly, that is designated as “Confidential” or that a reasonable person should understand to be confidential by the nature of the disclosure. Referral Partner agrees not to use any Confidential Information for any purpose except to exercise the rights and perform the obligations under this Agreement. Referral Partner agrees not to disclose any Confidential Information to third parties or to such party’s employees or contractors, except to those employees or contractors with a need to know and who are subject to confidentiality restrictions at least as protective of the Confidential Information as this Agreement. All Confidential Information will remain the sole property of Ngage, and will be protected against subsequent disclosure by Referral Partner with at least the same degree of care used to protect its own Confidential Information, which in any event will not be less than a reasonable degree of care. After termination, Referral Partner will return or destroy Confidential Information as requested by Ngage.

7. Term. This Agreement will begin upon execution and continue until terminated by either party as set forth in this Agreement.

8. Termination. Either party may terminate this Agreement at any time by giving the other party ten (10) days prior written notice. Ngage may terminate this Agreement or the Referral Program at any time for any reason. Upon termination of this Agreement, all outstanding referral fees due to the Referral Partner will be paid within thirty (30) days of the date of termination, and the Referral Partner will not be entitled to, and will not receive, any further or future referral fee, commissions or any other payments of any kind after the date of termination.

9. Indemnification. Referral Partner will indemnify, defend and hold harmless Ngage and its parent, subsidiaries, and affiliates and their shareholders, officers, directors, employees and agents from and against all liabilities, claims, causes of action, demands, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) (collectively referred to as “Losses”) incurred by Ngage as a result of, arising out of, or in connection with (i) any misrepresentations by Referral Partner, its agents or employees; (ii) a breach, or alleged breach, of Referral Partner’s representations, warranties or obligations under this Agreement; (iii) any negligent, fraudulent or intentional acts or omissions by Referral Party, its agents or employees; (iv) any claim which arises out of or is based on any regulatory actions, complaints or alleged violation of laws, related to this Agreement; or (v) any violation or infringement of any intellectual property rights or any other rights of any third party.

10. Disclaimer of Warranties. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, NGAGE DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NGAGE FURTHER DISCLAIMS ANY AND ALL RESPONSIBILITY AND LIABILITY WITH RESPECT TO SEPARATE AGREEMENTS REFERRAL PARTNER MAY MAKE WITH CUSTOMERS OR CONSUMERS AND REFERRAL PARTNER WILL LOOK SOLELY TO SUCH PERSONS AND/OR ENTITIES WITH RESPECT TO ANY AND ALL CLAIMS ARISING OUT OF SUCH AGREEMENTS.

11. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, NGAGE WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NGAGE’S AGGREGATE LIABILITY WILL NOT EXCEED THE GREATER OF (I) TOTAL FEES PAID TO REFERRAL PARTNER BY NGAGE FOR THE THREE (3) MONTH PERIOD PRECEDING ANY CLAIM OR (II) ONE THOUSAND DOLLARS ($1,000). IN ADDITION TO THE FOREGOING, NGAGE WILL NOT BE LIABLE FOR ANY LOSS, INJURY, CLAIM, LIABILITY OR DAMAGE OF ANY KIND RESULTING FROM REFERRAL PARTNER’S NON-COMPLIANCE WITH ALL APPLICABLE LOCAL AND STATE LAWS OR FROM REFERRAL PARTNER’S VIOLATIONS OF SUCH LAWS.

12. Relationship of the Parties. The relationship between the parties will at all times be that of independent contractors. No employment, partnership or joint venture relationship is formed by this Agreement and at no time may the Referral Partner position itself as affiliated to Ngage, except as an independent contractor. The Referral Partner acknowledges that it is an independent contractor and will be responsible for its own tax filings related to any fees paid to the Referral Partner. In view of this independent relationship, the Referral Partner will not enter into any agreements on behalf of Ngage, will make no warranty either expressed or implied on behalf of Ngage and will not incur any expenses on behalf of Ngage.

13. Miscellaneous. This Agreement contains the entire understanding between the parties hereto, and supersedes all prior and contemporaneous agreements, proposals, communications and understandings, whether written or oral, relating to the subject matter hereof. Ngage may add to, delete or modify this Agreement at any time without liability. Modified Terms and Conditions will be posted at www.ngagelive.com/referral-partnership/terms/ and will be effective upon posting. Such posting will constitute adequate notice to Referral Partner. By continuing to refer potential Customers to Ngage after posting the revised Terms and Conditions, Referral Partner will be deemed to have accepted the revised Terms and Conditions. This Agreement will be governed by the laws of the State of California, without giving effect to any choice of law rule. Each of the parties irrevocably submits to the exclusive jurisdiction of the state and federal courts residing in Los Angeles County, California and the Central District Court of California, respectively. The aforementioned choice of venue is intended by the parties to be mandatory, and not permissive, in nature. Referral Partner may not assign this Agreement without the prior written consent of Ngage. Ngage may assign this Agreement, in whole or in part, without notice to Referral Partner. Any unauthorized assignment or transfer will be null and void. The failure of either party to enforce at any time or for any period any of the provisions of this Agreement will not be construed to be a waiver of those provisions or of the right of that party thereafter to enforce each and every provision hereof. A waiver will not be effective unless it is in writing and signed by the party against whom the waiver is being enforced. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not apply in interpreting this Agreement. The language in this Agreement will be interpreted as to its fair meaning and not strictly for or against any party. The section headings contained in this Agreement are for reference purposes only and will not affect the meaning or interpretation of this Agreement. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will be considered one and the same instrument. An electronic signature will have the same legal force and effect as though it were the original of such signature. All notices and other communications required or permitted to be given by Ngage to Referral Party under this Agreement will be deemed to be properly given on the date when sent to Referral Partner’s email address or postal address recorded for Referral Partner’s account. All notices and other communications required or permitted to be given by Referral Partner to Ngage under this Agreement will be deemed to be properly given on the date when sent by registered or certified mail, postage prepaid and return receipt requested, or nationally recognized overnight courier or email to 909 N. Sepulveda Blvd., 11th Floor, El Segundo, CA 90245, Attention: Legal Department or [email protected].

Last Updated: August 11, 2015