REFERRAL AGREEMENT

ClearCare, Inc.
Cutomer Referral Program Agreement
Terms and Conditions

BY CLICKING “I AGREE”, YOU (“REFERRAL PARTNER”) AGREE TO ENTER INTO THIS REFERRAL AGREEMENT (“AGREEMENT”) WITH CLEARCARE, INC., A DELAWARE CORPORATION MAINTAINING OFFICES AT 150 SPEAR STREET, SUITE 1550, SAN FRANCISCO, CA 94105 (“CLEARCARE”). THE DATE ON WHICH REFERRAL PARTNER CLICKS “I AGREE” IS REFERRED TO HEREIN AS THE “EFFECTIVE DATE”. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT, AND BY CLICKING “I AGREE”, YOU ARE DOING SO ON BEHALF OF THAT ENTITY (AND ALL REFERENCES TO “REFERRAL PARTNER” IN THIS AGREEMENT REFER TO THAT ENTITY).


WHEREAS, Referral Partner is a customer of ClearCare as of the Effective Date; and
WHEREAS, ClearCare and Referral Partner believe that from time to time Referral Partner may become aware of certain sales opportunities for ClearCare’s Services; and
WHEREAS, ClearCare and Referral Partner desire to enter into this Agreement to establish the terms and conditions of their relationship.

These terms and conditions apply to any document or agreement (“Agreement”) made by and between ClearCare, Inc. (“ClearCare”), a Delaware corporation, located at 150 Spear Street, Suite 1550, San Francisco, CA 94105, and its customer (“Customer”) that incorporates these terms and conditions by reference.  References to the “Agreement” include these terms and conditions.  The effective date of the Agreement is referred to herein as the “Effective Date”.

AGREEMENT
NOW, THEREFORE, in consideration of the consideration of the mutual covenants and promises contained herein and for other good and valuable consideration the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

  1. DEFINITIONS.

    1. Business Days” means Monday through Friday excluding those days on which ClearCare observes a state or federal holiday.  All references to “days” in this Agreement shall refer to calendar days unless Business Days is expressly specified.

    2. Client” means an individual who receives home care from a Customer and is entered into ClearCare’s Services when the Customer enters into a Definitive Agreement with ClearCare.

    3. Customer” means an entity identified by Referral Partner as a potential customer of the Services.

    4. Definitive Agreement” means a written agreement between a Customer and ClearCare under which (i) ClearCare will make Services available to Customer and (ii) Customer has at least 20 initial Clients.

    5. Lead Referral Form” means an online lead referral form submitted by Referral Partner to ClearCare via the Online Portal, which contains the name of the Customer, contact information for the Customer, and other information reasonably requested by ClearCare.

    6. Online Portal” means ClearCare’s online portal for processing lead referrals.

    7. Qualified Referral” means each Customer referred by Referral Partner to ClearCare through submission of a Lead Referral Form.

    8. Rebate Check” means a rebate check that ClearCare sends to Referral Partner.  The amount of the Rebate Check (per successful Qualified Referral) will equal Referral Partner’s subscription fees for the one month during which ClearCare signs a Definitive Agreement with the Qualified Referral, except that the amount of the Rebate Check will not exceed $2,500 for each successful Qualified Referral.

    9. Services” means ClearCare’s web-based home care software solution, made available in the form of software-as-a-service.

  2. REFERRAL PROVISIONS.

    1. Lead Referral Form.  Subject to the terms and conditions of this Agreement, during the term of this Agreement, ClearCare grants Referral Partner a limited, personal, revocable, non-transferable, non-sublicenseable, non-exclusive license to use internally the Online Portal to submit Lead Referral Forms.  All rights not expressly granted by ClearCare to Referral Partner herein are reserved.  Referral Partner shall not introduce any Customer to ClearCare unless Referral Partner has first submitted a Lead Referral Form via the Online Portal with respect to such specific potential opportunity and ClearCare has accepted in writing the Customer identified in that Lead Referral Form.  ClearCare will provide Referral Partner with written acceptance or rejection of each Lead Referral Form within fifteen (15) Business Days following the receipt thereof by ClearCare.  Any decision related to whether to accept or reject any such Lead Referral Form is in the sole and absolute discretion of ClearCare.  Unless ClearCare accepts the Lead Referral Form within such fifteen (15) Business Day period, the Lead Referral Form shall be deemed rejected.  In no event shall ClearCare have any liability to Referral Partner whatsoever in the absence of ClearCare’s written acceptance of a Lead Referral Form, even if Referral Partner provides ClearCare with information which contributes or may contribute to ClearCare entering into a Definitive Agreement with a Customer and the eventual sale of Services to Customers pursuant to that Definitive Agreement.

    2. Scope.  Each Lead Referral Form applies only to the Definitive Agreement that the Customer specified in the Lead Referral Form and, unless otherwise explicitly set forth therein, shall not apply to any other sale (including, without limitation, any sale to any related party, organization, affiliate, department, division or business unit).

    3. Changes.  ClearCare may, in its sole and absolute discretion:  (i) discontinue the availability of the Services or make whatever additions, deletions or other changes to the Services it deems necessary, desirable or appropriate; (ii) change the qualifications and criteria for its customers; and (iii) change the terms of any Definitive Agreement.  ClearCare is under no obligation to execute a Definitive Agreement with any Qualified Referral and may decline to do so for any reason in ClearCare’s sole discretion.

    4. Rebate Check.  In the event ClearCare signs a Definitive Agreement with a Qualified Referral within 60 days of ClearCare’s acceptance of the Lead Referral Form for that Qualified Referral, if Referral Partner remains a customer of ClearCare’s Services as of the date of such Definitive Agreement, then, subject to the terms of this Agreement, ClearCare will send a Rebate Check to Referral Partner.  Referral Partner shall not be entitled to any other reimbursement of any expenses or for any other payment or compensation of any type other than as set forth in this Section 2.4.

  3. REFERRAL PARTNER’S OBLIGATIONS.

    1. Referral Partner will promote the Services at its own expense, unless otherwise agreed upon in writing with ClearCare.  In Referral Partner’s promotional efforts, Referral Partner will use the then-current names used by ClearCare for the Services (but will not represent or imply that Referral Partner is ClearCare or is a part of or affiliated with ClearCare).

    2. Referral Partner agrees:  (i) to conduct business in a manner that reflects favorably at all times on the Services and the good name, goodwill and reputation of ClearCare; (ii) to conscientiously avoid deceptive, misleading or unethical practices that are or might be detrimental to ClearCare or the public, including but not limited to, disparagement of ClearCare or the Services; (iii) not to publish or employ or cooperate in the publication or employment of, any misleading or deceptive advertising material; (iv) to make no representations, warranties or guarantees to Customers or prospective customers or others, with respect to the specifications, features or capabilities of the Services that are inconsistent with or in addition to the literature distributed by ClearCare; and (v) not to engage in any acts prohibited by any applicable law, including, but not limited to, antitrust or unfair trade practice laws, which prohibit various forms of predatory, discriminatory or below-cost pricing.

    3. Referral Partner will be required to provide certain information (such as identification or contact details) as part of the registration process for participating in ClearCare’s referral program.  Any registration information Referral Partner gives to ClearCare will always be accurate and up to date and Referral Partner shall inform ClearCare promptly of any updates.  ClearCare will assign Referral Partner access credentials, and Referral Partner must use them with the Online Portal.  Referral Partner will not misrepresent or mask its identity when using the Online Portal.

    4. When using the Online Portal, Referral Partner may not (or allow those acting on its behalf to) do any of the following:

      1. sublicense the Online Portal for use by a third party; 

      2. perform an action with the intent of introducing to the Online Portal any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature;

      3. interfere with or disrupt the Online Portal or the servers or networks providing the Online Portal;

      4. reverse engineer or attempt to extract the source code from the Online Portal or any related software, except to the extent that this restriction is expressly prohibited by applicable law; and

      5. remove, obscure, or alter any ClearCare proprietary notices or any ClearCare terms or any links to or notices of those terms.

  4. CONFIDENTIAL INFORMATION.
    1. For the purposes of this Agreement, “Confidential Information” means non-public information about the disclosing party’s business or activities that is proprietary and confidential, which shall include, without limitation, all business, financial, technical and other information of a party marked or designated “confidential” or by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential.  Confidential Information includes not only written or other tangible information, but also information transferred orally, visually, electronically or by any other means.  Confidential Information of ClearCare includes, but is not limited to, all information of or about ClearCare’s Customers and potential customers, and this Agreement (Referral Partner may, however, disclose to potential customers that Referral Partner has a referral arrangement with ClearCare).  Confidential Information will not include information that (i) is in or enters the public domain or publicly available without breach of this Agreement, (ii) the receiving party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation or (iii) the receiving party knew prior to receiving such information from  the disclosing party or develops independently.

    2. Each party agrees (i) that it will not disclose to any third party or use any Confidential Information of the other party disclosed to it except as expressly permitted in this Agreement and (ii) that it will take all reasonable measures to maintain the confidentiality of all Confidential Information in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance.

    3. Notwithstanding the foregoing, each party may disclose Confidential Information (i) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law or (ii) on a “need-to-know” basis under an obligation of confidentiality to its legal counsel, accountants, banks and other financing sources and their advisors.

  5. DISCLAIMER OF WARRANTY.  CLEARCARE MAKES NO WARRANTY OF ANY KIND TO REFERRAL PARTNER WITH REGARD TO THE SERVICES OR THE ONLINE PORTAL.  CLEARCARE EXPRESSLY DISCLAIMS AND EXCLUDES ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE.

  6. LIMITATION OF LIABILITY.

    1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLEARCARE’S TOTAL CUMULATIVE LIABILITY TO REFERRAL PARTNER FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO AND WILL NOT EXCEED THE AMOUNTS PAID BY CLEARCARE TO REFERRAL PARTNER UNDER THIS AGREEMENT DURING THE ONE YEAR PERIOD PRIOR TO THE DATE THE CLAIM AROSE.

    2. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT  WILL CLEARCARE BE LIABLE TO ANY PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT CLEARCARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

  7. TERM; TERMINATION.

    1. This Agreement will commence on the Effective Date and shall remain in effect for one (1) year thereafter, and shall automatically renew for additional one (1) year periods, unless terminated by either party by written notice to the other party at least thirty (30) days prior to the end of the then-current term.

    2. ClearCare may terminate this Agreement for any reason upon thirty (30) days written notice to the other party.

    3. Referral Partner may terminate this Agreement for any reason upon thirty (30) days written notice to the other party.

    4. This Agreement automatically terminates if Referral Partner ceases to be a customer of ClearCare.

    5. Either party may terminate this Agreement by providing written notice to the other party if the other party ceases to function as a going concern, becomes insolvent, makes an assignment for the benefit of creditors, files a petition in bankruptcy, permits a petition in bankruptcy to be filed against it, or admits in writing its inability to pay its debts as they mature, or if a receiver is appointed for a substantial part of its assets.

    6. Upon termination of this Agreement for any reason (i) Referral Partner will cease all activities related to referrals for ClearCare and the Services, (ii) ClearCare will cease issuing to Referral Party any Rebate Checks, and (iii) each party shall cease using the other party’s Confidential Information, and upon request, return or destroy all tangible copies of the other party’s Confidential Information in its possession.

  8. GENERAL.

    1. Severability.  In the event any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.  The parties agree to replace any invalid provision with a valid provision, which most closely approximates the intent and economic effect of the invalid provision.

    2. Assignment; Waiver.  Referral Partner may not assign or transfer this Agreement or any of Referral Partner's rights or obligations under this Agreement, without the prior written consent of ClearCare.  Any attempted assignment or transfer without such written consent shall be null and void.  For the avoidance of doubt, Referral Partner may not subcontract performance of any services under this Agreement to any other contractor or consultant without ClearCare’s prior written consent.  ClearCare may assign its rights or delegate its obligations under this Agreement upon notice to Referral Partner.  A waiver of any default hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition, but shall apply solely to the instance to which such waiver is directed.

    3. Injunctive Relief.  The parties acknowledge and agree that Referral Partner’s obligations under this Agreement are of a unique character that gives them particular value.  Referral Partner’s breach of any of these obligations will cause irreparable and continuing damage to ClearCare for which money damages are insufficient, and ClearCare is entitled to injunctive relief, a decree for specific performance, and all other relief as may be proper (including money damages if appropriate), without the need to post a bond.

    4. Relationship of Parties.  The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.  Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.  Each party understands and agrees that this Agreement is nonexclusive.  Nothing in this Agreement shall be construed as limiting, in any manner, ClearCare’s own marketing, sales or distribution activities or its appointment of other referral partners, resellers, distributors, licensees or agents.

    5. Notices.  All notices and other communications shall be in a writing addressed to Referral Partner or to an authorized ClearCare representative at the addresses set forth above, and shall be considered given when (i) delivered personally, (ii) sent by confirmed telex or facsimile, (iii) sent by commercial overnight courier with written verification receipt, or (iv) three (3) Business Days after having been sent, postage prepaid, by first class or certified mail.

    6. Survival Of Obligations.  The termination or expiration of this Agreement for any reason shall not affect a party’s rights or obligations that expressly or by their nature continue and survive (including, without limitation, the provisions concerning confidentiality, limitation on liability, and the warranty disclaimers).

    7. Governing Law; Dispute Resolution.  The laws of the State of California (without giving effect to its conflicts of law principles) govern all matters arising out of or relating to this Agreement.  The parties hereby submit to the jurisdiction of, and waive any venue objections against, the federal and state courts of San Francisco, California in all controversies arising out of, or relating to, this Agreement.

    8. Entire Agreement; Modification, Counterparts.  This Agreement is the entire agreement between the parties relating to the subject matter hereof and supersedes all other prior and contemporaneous negotiations and agreements, oral or written, between them relating to the subject matter hereof.  This Agreement may not be varied, modified, altered, or amended except in writing, signed by the parties.  This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.