The following terms and conditions govern the Open Text Referral Program (the Referral Program). Open Text reserves the right to change these terms and conditions at any time by posting a new version on this page. A new version will become effective on the date posted with respect to opportunity submissions on or after that date.
1. Definitions. In addition to the other terms defined herein, the following terms will have the following meanings:
Applicable Commission Rate means, in the case of a Product P.O., 10% of the Product P.O., and in the case of a Services P.O. the Applicable Commission Rate is 5% of the Services P.O.
"Commissionable Receipts" means the amounts actually paid to OT by the Referred End User with respect to Qualified Purchase Orders, less associated (a) refunds, credits allowances, discounts, rebates, and any conditional or contingent fees; (b) shipping, freight, transportation, handling, insurance and like charges; and (c) taxes, duties, customs, tariffs, export fees and like surcharges. For subscriptions and term licenses, Commissionable Receipts include only the amounts paid to OT by the Referred End User with respect to Qualified Purchase Orders up to the minimum contractually committed amount (net of the adjustments stated above) and does not include any fees attributable to any maintenance or renewals or adjustments relating to preexisting contracts between OT and the Referred End User. The minimum contractually committed amount is the minimum amount that the Referred End User is contractually obligated to purchase by reference to the associated Qualified Purchase Order. The minimum contractually committed amount does not include any amount attributable to a license term or subscription beyond sixty (60) months.
"Online Website" means the website made available by OT for submission of information regarding individual referral deals and application for a Referral Fee including http://www.opentext.com/connect/global/opentext-partner-referral.htm and any related or replacement website.
Product P.O. means the amount of Product license or subscription fees that are included in a purchase order or order form received by OT from the Referred End User during the Term, which corresponds to a Qualified Opportunity, and is accepted by OT.
Products means the software products or cloud services sold by the OpenText group of companies that are included on a Qualified Purchase Order and that are approved by OT for payment of a Referral Fee.
Qualified Opportunity means the specific opportunity with the named Referred End User described in Referral Partners on-line submission to Open Text during the Referral Program registration process which is accepted by OT.
“Qualified Purchase Order” means: (i) a Product P.O.; and/or, (ii) a Services P.O.
"Referral Fee" means the Applicable Commission Rate times the Commissionable Receipts but in no event shall the Referral Fee with respect to a Qualified Purchase Order exceed $250,000 per Product P.O. or $125,000 per Services P.O.
"Referred End User" means the persons or entities identified as Referred End Users as entered during the Online Website submission process and accepted by OT by means of a confirming email to the Referral Partner.
Referral Partner means the entity whose referral opportunity submitted on the Online Website is accepted by OT.
Services P.O. means the amount of fees invoiced by OT for professional services that correspond to a Qualified Opportunity and were rendered by OT to the Referred End User, net of any amounts subcontracted to any third party.
Submission Date means the date of Referral Partners Online Website submission to Open Text of a particular referral opportunity.
Term means the period of time between the Submission Date and twelve months from the Submission Date (subject to OTs written approval to extend), subject to a shorter period of time as provided in paragraph 4.
2. Compensation. The Referred End User must submit a purchase order or order form with respect to a Qualified Opportunity during the Term. OT may accept or reject in its discretion any such purchase order or order form submitted by the Referred End User for any reason whatsoever. If Referral Partner is a reseller or distributor of OT products, under no circumstances will a Referral Fee be paid with respect to any fees received by OT from any products or services distributed or resold by Referral Partner. Referral Fees shall be paid to Referral Partner no later than sixty (60) days after issue of an invoice by Referral Partner to OT for the Referral Fee; OT shall notify Referral Partner of the corresponding Commissionable Receipt, at which point Referral Partner can issue its invoice for the Referral Fee. Referral Partner shall only be entitled to receive a Referral Fee where it invoices OT for such within 90 days of being notified by OT to invoice. To be classified as a Qualified Purchase Order, the purchase order or order form must be with respect to a Qualified Opportunity directly between OT and the Referred End User, with no other partner or reseller involved. Prior to payment of a Referral Fee, Referral Partner must provide vendor and banking information as requested by OT. If OT is required to refund all or a part of Commissionable Receipts from a Referred End User at any time, Referral Partner must return the allocable Referral Fee to OT within 30 days of OTs request.
3. Cooperation and Course of Conduct. Upon OTs request, Referral Partner will reasonably cooperate in the marketing of the Products or services to the Referred End User. Referral Partner will not make or authorize any proposal, quotation, representation, warranty, term, condition or other provision relating to any Product or service that has not been approved or otherwise authorized by OT in writing. Referral Partner will conduct its dealings with the Referred End User in such a manner so as to promote a good image and public relations for the Products, services and OT.
4. Term and Termination. These terms and conditions are effective as of the date an opportunity submitted to OT by Referral Partner is accepted by OT. Unless earlier terminated as set forth below, Referral Partners opportunity for a Referral Fee with respect to a Qualified Opportunity ends as of the last day of the Term. Either party may terminate these terms and condition for any reason by giving the other party fifteen (15) days written notice of termination, provided that if Referral Partner has not breached these terms or conditions in any material respect, Referral Partner will be paid a Referral Fee for any Commissionable Receipts attributable to Qualified Purchased Orders accepted by OT before the effective date of the termination. If Referral Partner has breached these terms and conditions in any material respect, then any and all Referral Fee payment obligations will terminate as of the date Referral Partner is sent notice of termination. The parties respective rights and obligations under Sections 4 and 5 will survive termination of these terms.
5. Confidential Information. Referral Partner covenants and agrees that any data, knowledge or other information received or learned by Referral Partner in connection with the submission of the opportunity and activates contemplated herein that relate to the business, affairs, customers, vendors, markets, finances, methods, products, services, technology, trade secrets or proprietary rights of OT or its affiliates will be treated by Referral Partner as confidential and proprietary information of OT. Neither Referral Partner nor any employee of OT will disclose or use such information other than as authorized by OT.
6. Miscellaneous
6.1 Compliance with Laws. In performing activities referred to hereunder, Referral Partner warrants that it has complied and agrees that it will comply, (a) with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any governmental authority of competent jurisdiction; (b)_with the Foreign Corrupt Practices Act of the U.S., the Bribery Act of the U.K., and any applicable local laws or regulations (collectively, the “Anti-Corruption Laws”) including their prohibitions regarding the direct or indirect payment or giving of anything of value to an official of a foreign government, political party or governmental or non-governmental agency for the purpose of influencing an act or decision in their official capacity or inducing the official to use their or their organization’s influence to obtain or retain business involving the Product(s). Referral Partner shall indemnify and hold harmless OT against and from any claim, loss, damage or expense (including attorneys' fees and disbursements) (a) arising from any breach by Referral Partner of any representation, warranty, covenant or other obligation of Referral Partner under this Section, (b) resulting from any unlawful act committed by Referral Partner or any agent of Partner thereof, or (c) which OT may sustain by reason of any act, omission or misrepresentation of Partner or any agent thereof relating to this Section. Referral Partner agrees to maintain an effective program to comply with the Anti-Corruption Laws. Partner agrees to certify or recertify compliance within thirty days of the date OT requests such action.
6.2 Scope of Relationship. In performing hereunder, Referral Partner will be acting as an independent contractor and not as an agent or employee of OT. These terms and conditions will not be interpreted or construed as creating or evidencing any agency, franchise, association, joint venture, or partnership between the parties or as imposing any partnership obligation or liability on any party. Referral Partner acknowledges and agrees that: (a) it may not obtain any economic benefit by virtue of its activities as Referral Partner; (b) it will not have, by virtue of performing such activities or otherwise, any right, power or authority to act as the agent of, to enter into any contract, to make any representation or warranty or to incur any obligation or liability of OT; and (c) Referral Partner will not, without Referral Partners specific request in each instance, intervene, attempt to assist, or interfere in any dealings, negotiations, or course of performance between OT and the Referred End User (or other third party).
6.3 DISCLAIMER OF LIABILITY. OPEN TEXTS TOTAL LIABILITY RELATED TO OR ARISING IN CONNECTION WITH THE FINDER PROGRAM WILL NOT EXCEED THE AMOUNT OF FINDERS FEES PAID TO FINDER HEREUNDER. OPEN TEXT WILL NOT, IN ANY EVENT, BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
6.4 Notices. Any notice with respect to the finder program will be deemed effective if given in writing and delivered in person, transmitted by fax, or mailed, properly addressed and stamped with the required postage, to the intended recipient: (i) if to OT, 275 Frank Tompa Drive, Waterloo, Ontario Canada, N2L 0A1, Attn: General Counsel; (ii) if to Referral Partner, at the address you have provided Open Text. Any party may change its address for notices by giving the other party notice of such change. Notices will be effective on the earlier of actual receipt or three (3) days after mailing.
6.5 Governing Law and Venue. These terms will be governed by the laws of the State of Delaware excluding its conflicts or choice of law rules. Except for injunctive relief required by OT to protect its intellectual property, all related litigation shall occur in the courts located in such jurisdiction. If Referral Partner or OT commence any litigation or proceeding against the other related to the finder program, the prevailing party shall be entitled to an award of its reasonable attorneys fees and court costs.
6.6 Assignment. Referral Partner may not assign any right or interest relating to the finder program without the prior written consent of OT.
6.7 Entire Agreement. The foregoing terms and conditions set forth the entire agreement, and supersedes any and all prior agreements, between OT and Referral Partner relating to subject matter hereof. No amendment to these terms and conditions will be effective unless made in a written instrument signed by both parties.
