THIS REFERRAL AGREEMENT (the “Agreement”) is made effective on the date of sign-up (the “Effective Date”) by and between Breezeway Homes, Inc., a Delaware corporation (“Breezeway”), with an address at 10 Circuit Road Chestnut Hill, MA 02467and the affiliate contact who signed up (“Partner”). The parties agree as follows:

1. Definitions.

1.1 “Client” means a third party referred by Partner to Breezeway via a valid Lead Form (that is accepted by Breezeway) who enters into a Client Agreement with Breezeway.

1.2 “Products” means Breezeway’s products and services that are generally commercially available and described on Breezeway’s website at https://www.breezeway.io/

1.3 “Client Agreement” means the written contract by which Breezeway agrees to supply a Client access to and/or services in connection with any Product, which contract is fully executive by the customer and the Company.

1.4 “Prospect” means a new contact who may be interested in acquiring the Products and who has never bought any products of the Company or entered in a Client Agreement during the 12 months preceding referral.

1.5 “Lead Form” means Breezeway’s landing pages, UTM tracking codes and URLs, specific emails to Breezeway sales management, or other commercially reasonable technology used to record and store Prospects referred by Partner.

 

2. Referrals and Obligations.

2.1 Referral Relationship.  Partner agrees to promote and include Breezeway in Partner’s affiliate referral program in the “Property Operations, Care & Messaging” category.  Subject to the terms and conditions of this Agreement and the attached Exhibit A (the “Schedule”), Partner shall promote and refer Prospects to Breezeway, including: (i) presenting Products and/or Breezeway Materials in appropriate sales opportunities; (ii) collaborating and developing compelling marketing collateral and special offers to the Partner audience, (iii) facilitating meetings between Breezeway and the Prospect, and (iv) other mutually developed marketing plans.

2.2 Lead Form.  All Lead Forms shall be subject to acceptance by Breezeway in its sole discretion. Referral Commissions shall not apply (i) if the Prospect is already under written contract or was under written contract during the preceding 12 months, or (ii) if Breezeway has been engaged in prior sales discussions with the Prospect within the six months prior to receipt of a Lead. It is Partner’s responsibility to report any errors in quarterly reports with respect to such Partner’s, sales introductions, submitted Lead Forms, Prospects and Earned Commissions immediately. Breezeway reserves the right to modify these eligibility requirements upon notice to Partner.

2.3 Breezeway Materials.  Breezeway will provide Partner, at no cost to Partner, with materials for use in conjunction with promoting the Products hereunder (“Breezeway Materials”), to demonstrate the functionality of the Products, and other marketing materials. As between the parties, Breezeway owns all right, title and interest in and to the Products and the Breezeway Materials. If Partner desires to use any material to promote the Products that was not provided to Partner by Breezeway, then Partner will send a copy of such material to Breezeway for prior approval. Partner will not bid on, purchase, or use any keyword or term trademarked by Breezeway in any keyword advertising service, search engine, or social platform, or otherwise use any such keyword or term to direct users to Partner’s website. No rights or licenses are granted in the Breezeway Materials except as expressly and unambiguously set forth in this Agreement.

2.4 Independent Contractors.  The parties are independent contractors and not partners, joint venturers or otherwise affiliated and neither has any right or authority to bind the other in any way. Accordingly, Partner shall not commit Breezeway to any Client Agreement or other contract or obligation.

3. Commissions; Taxes.  During the term of this Agreement, Partner will be eligible to earn a Commission pursuant to the terms provided in the attached Exhibit A (the “Schedule”). Earned Commissions shall be paid on a monthly basis for amounts earned during the immediately previous month and in accordance with Exhibit A. Breezeway may provide Partner with quarterly reports with respect to such Partner’s Lead Forms, Prospects and Earned Commissions. Each party shall be responsible for and pay any and all applicable taxes, customs, withholding taxes, duties, assessments and other governmental impositions resulting from its own activities under this Agreement.

Warranties; Disclaimer.  Any warranties for the Products or Breezeway Materials shall run directly from Breezeway to the Client or Prospect. In no event shall Partner make any representation, guarantee or warranty concerning the Products, Breezeway Materials, or terms and conditions of any Client Agreement, except as expressly authorized in writing by Breezeway. Partner shall indemnify, defend and hold harmless Breezeway, its directors, officers, agents, and affiliates against any liability, loss, costs, or damages arising out of or related to Partner’s breach of the foregoing sentence.

5. Liability Limitation.  AS TO BREEZEWAY’S AND PARTNER’S RESPECTIVE RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT ONLY, EXCEPT WITH RESPECT TO A BREACH OF SECTION 8 AND EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, (I) NEITHER PARTY WILL BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER ANY CONTRACT, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHATSOEVER, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, RELIANCE OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, AND (II) NEITHER PARTY’S LIABILITY SHALL EXCEED THE COMMISSIONS PAYABLE BY BREEZEWAY TO PARTNER DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.  THE COVENANTS AND OBLIGATIONS OF PARTNER SET FORTH IN THIS AGREEMENT SHALL BE CONSTRUED AS INDEPENDENT OF ANY OTHER AGREEMENT OR ARRANGEMENT BETWEEN PARTNER, ON THE ONE HAND, AND BREEZEWAY, ON THE OTHER. 

6. Term and Termination.  This Agreement shall be effective as of the Effective Date and shall continue in full force and effect for a period of one year, automatically renewing and extending for additional one-year terms, unless renewed or earlier terminated by the parties in writing pursuant to Section 7.2. Either party may, at its option, terminate this Agreement upon at least 30 days’ written notice to the other party for any reason or for no reason whatsoever. This Agreement may also be terminated by either party immediately upon written notice to the other party if breaching party fails to cure such breach within 10 business days of receipt of notice of breach. Upon any termination or expiration of this Agreement, (i) except in cases of termination by Breezeway for cause, all amounts due Partner (i.e., all Earned Commissions) will immediately become due and payable within 30 days following termination or expiration; (ii) Partner shall immediately cease all promotion of the Products and shall immediately return to Breezeway, or at the option of Breezeway, destroy, all Confidential Information of Breezeway, Breezeway Materials and Products provided to Partner hereunder; and (iii) Breezeway may continue to market, sell or provide the Products to any third party, without obligation to pay Partner any Commissions. Notwithstanding any termination or expiration of this Agreement, the following Sections shall survive and remain in effect: 1, 2.4, 4, 5, 6, 7.3, 8 and 9. Any termination or expiration of this Agreement shall be without prejudice to any other rights or remedies available under this Agreement or at law.

7. Confidentiality.

7.1 Confidentiality. During the course of performing this Agreement, each party may have access to confidential or proprietary information of the other party (“Confidential Information”). Confidential Information shall include, without limitation, all customer lists and information relating to the parties’ products and pricing. A party’s Confidential Information shall not include any information which (a) was rightfully known to the receiving party without restriction before receipt from the disclosing party, (b) is rightfully disclosed to the receiving party without restriction by a third party, (c) is or becomes generally known to the public without violation of this Agreement by the receiving party or (d) is independently developed by the receiving party or its employees without access to or reliance on such information. Each party agrees to use the other party’s Confidential Information only as necessary to perform their obligations under this Agreement and to maintain the confidentiality of the other party’s Confidential Information using at least the same degree of care in safeguarding the other’s Confidential Information as it uses in safeguarding its own Confidential Information, but in no event less than a reasonable degree of care, to prevent any unauthorized copying, use, distribution, installation or transfer of possession of such information. These restrictions will not prevent either party from complying with any law, regulation, court order or other legal requirement that purports to compel disclosure of any Confidential Information.  The receiving will promptly notify the disclosing party upon learning of any such legal requirement and cooperate with the disclosing party in protecting its Confidential Information.

7.2 Irreparable Harm. Both parties acknowledge that any use or disclosure of the other party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable damage for which remedies other than injunctive relief may be inadequate, and both parties agree that the disclosing party shall be entitled to receive from a court of competent jurisdiction injunctive or other equitable relief to restrain such use or disclosure in addition to other appropriate remedies, without the necessity of posting any bond or surety.

7.3 Proprietary Software Restrictions. Partner agrees and acknowledges that Breezeway Products are proprietary to Breezeway, that Partner will have access to Confidential Information, and further that Partner will not create, sell, market or distribute software that is competitive to Breezeway Products.

 

8. Miscellaneous.

8.1 Choice of Law and Notice. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to the provisions of the conflict of laws thereof. Any notice or other communication required or permitted in this Agreement shall be in writing and shall be deemed to have been duly given on the day of service if served personally or upon receipt if mailed by First Class mail, registered or certified, postage prepaid, and addressed to the respective parties at the addresses set forth above, or at such other addresses as may be specified by either party pursuant to the terms and provisions of this section.

8.2 Assignment. Neither party may assign, without the prior written consent of the other, its rights, duties or obligations under this Agreement to any person or entity, in whole or in part; provided, however, that this Agreement may be assigned by Partner or Breezeway without the consent of the other to any successor corporation or entity whether by purchase of all or substantially all of the assets relating to this Agreement, a sale of a controlling interest of the capital stock of the assigning party, by merger, consolidation or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

8.3 Severability. Any provision of this Agreement that is determined to be unenforceable or unlawful shall not affect the remainder of the Agreement and shall be severable therefrom, and the unenforceable or unlawful 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.

8.4 Entire Agreement. This Agreement (together with all attachments and exhibits hereto, including the Schedule) constitutes the entire agreement between the parties and supersedes any and all prior agreements between them, whether written or oral, with respect to the subject matter hereof. This Agreement may not be amended, modified or provision hereof waived, except in a writing signed by the parties hereto. No waiver by either party, whether express or implied, of any provision of this Agreement, or of any breach thereof, shall constitute a continuing waiver of such provision or a breach or waiver of any other provision of this Agreement.

8.5 Press Releases. Any news release, public announcement, advertisement, or other publicity released by either party concerning this Agreement shall be subject to the prior approval of the other party, which approval shall not be unreasonably withheld or delayed.

The following are the Commission Terms to the Referral Agreement:  

1. Earned Commission.  For the duration of the Referral Agreement (the “Commission Term”), Breezeway will pay to Partner the applicable amount(s) (to be calculated in accordance with the chart below) in the quarter following receipt of first payment from a Partner-referred Prospect resulting from a warm sales introduction (“Earned Commission”).  All capitalized terms not defined in this Schedule are defined in the Agreement to which this Schedule is attached.

A “warm sales introduction” shall mean introduction over email or in-person between the Breezeway and any member of a “target company” where the member has direct oversight of purchasing decisions.  Any company with which Breezeway has active sales discussions with is ineligible to be considered a “target company.” 

Partner is eligible to earn Commission on a sale only if (a) the customer signs the Client Agreement with the Breezeway within 90 days of the date of Sales Lead Approval for such customer and (b) Partner remains a Partner to the Breezeway at the time of sale. “Sales Lead Approval” means that Partner has submitted to the Breezeway a Lead Form (see Section 2.2 of the Agreement) 

Earned Commission is subject to the terms and conditions in this Agreement. Breezeway will pay Partner in accordance with the following schedule: