REFERRAL AMBASSADOR PROGRAM TERMS AND CONDITIONS

REFERRAL AMBASSADOR PROGRAM TERMS AND CONDITIONS (these “Terms and Conditions”), by and between 1648 Factory Inc. or 1648 Factory GmbH, as determined as provided in Section 1(d) below (such entity the “Company”), and an individual or company that has submitted to the Company a completed application to become an Ambassador in the form found at https://www.1648factory.com/ambassador-program (an “Application”) and whose Application has been approved by the Company (“Ambassador”). The Company and Ambassador are sometimes referred to in these Terms and Conditions collectively as the “Parties” and each is sometimes referred to herein as a “Party.”

1. Background; Entity Constituting the Company 

(a) The Company provides software development services and computer engineering staffing services to the public, which services are broken down into the following five categories: (i) Engineering, (ii) Design, (iii) Growth, (iv) Venture Project and (v) Venture Program (such services being sometimes referred to collectively herein as the “Services”). Ambassador desires to refer prospective customers for the Services to the Company for a fee and, subject to the terms and conditions set forth herein, the Company is willing to pay a fee to Ambassador for each referral of a prospective customer to the Company that results in a signed contract between the Company and such prospective customer and payment to the Company thereunder. Accordingly, the Parties desire to enter into a referral arrangement with respect to Ambassador’s referral to the Company of prospective customers for the Services. Referrals to the Company of individuals or companies (collectively “Persons”; provided, however, that when used with reference to Persons referred in Talent Referrals or who are Talent Leads (as the terms “Talent Referrals” and “Talent Leads” are defined below herein), the term “Persons” shall refer only to individuals) as prospective customers are referred to herein as “Sales Referrals” and such Persons are referred to herein as “Sales Leads”). These Terms and Conditions set out the terms and conditions applicable to Sales Referrals and to payments of referral fees in regard thereto. 

(b) From time to time, the Company seeks to engage employees. Ambassador desires to refer prospective employees to the Company for a fee and, subject to the terms and conditions set forth herein, the Company is willing to pay a fee to Ambassador for its referrals of prospective employees that result in the prospective employee’s being hired by the Company. Accordingly, the Parties desire to enter into a referral arrangement with respect to Ambassador’s referral to the Company of prospective employees. Referrals to the Company of Persons as prospective employees are referred to herein as “Talent Referrals” and such Persons are referred to herein as “Talent Leads”). These Terms and Conditions set out the terms conditions applicable to Talent Referrals and to payments of referral fees in regard thereto. 

(c) These Terms and Conditions shall not constitute a binding agreement between the Company and any prospective Ambassador (the “Applicant”) unless and until the Applicant’s Application has been approved by the Company. If the Company does approve such Application, then, upon notification to the Applicant of such approval, Applicant will be an “Ambassador” for purposes of these Terms and Conditions and thereafter all of Ambassador’s Sales Referrals and Talent Referrals shall be governed by these Terms and Conditions. In no event shall the Company be required to approve the Applicant’s Application, and the Company may act within its sole discretion in deciding whether or not to do so and may reject any Application for any reason whatsoever (or for no reason at all). 

 (d) If a Sales Referral is of a Sales Lead located in the United States, then, as to such Sales Referral, these Terms and Conditions will be between Ambassador and 1648 Factory Inc. and, as to such Sales Referral, 1648 Factory Inc. will be the “Company” for all purposes of these Terms and Conditions; and if a Sales Referral is of a Sales Lead located outside of the United States, then, as to such Sales Referral, these Terms and Conditions will be between Ambassador and 1648 Factory GmbH and, as to such Sales Referral, 1648 Factory GmbH will be the “Company” for all purposes of these Terms and Conditions. If a Talent Referral involves a position with 1648 Factory Inc., then,  as to such Talent Referral, these Terms and Conditions will be between Ambassador and 1648 Factory Inc. and, as to such Talent Referral, 1648 Factory Inc. will be the “Company” for all purposes of these Terms and Conditions; and if a Talent Referral involves a position with 1648 Factory GmbH, then, as to such Talent Referral, these Terms and Conditions will be between Ambassador and 1648 Factory GmbH and, as to such Talent Referral, 1648 Factory GmbH will be the “Company” for all purposes of these Terms and Conditions. 

2. Sales Referrals. From time to time during the term of these Terms and Conditions, Ambassador may make Sales Referrals to the Company. All Sales Referrals shall be made, and all referral fees payable in respect of contracts arising from Sales Referrals shall be calculated and paid, as provided in Schedule A.

3. Talent Referrals. From time to time during the term of these Terms and Conditions, Ambassador may make Talent Referrals to the Company. All Talent Referrals shall be made, and all referral fees payable in respect of Talent Referrals shall be calculated and paid, as provided in Schedule B.

4. Ambassador’s Right to Examine Certain Records. The Company shall create and, for at least one (1) year after any referral fee shall be paid to Ambassador, shall retain, separate records with respect to the basis for and calculation of such referral fee. Such records shall be in sufficient detail to permit Ambassador to verify such basis and calculation and in general to  determine that such referral fee was in the correct amount. Ambassador and its designated agent shall be permitted to examine such records for the purposes set forth in the immediately preceding sentence, any such examination to be at such time as may be agreed upon between Ambassador and the Company. Prior to beginning any such examination, Ambassador and its agent, if any, shall execute a customary non-disclosure and confidentiality agreement in favor of the Company. Any such examination shall be at the sole cost and expense of Ambassador. 

5. Termination of Ambassador’s Status as Ambassador. Ambassador’s status as Ambassador shall continue until terminated by either Party in the manner set forth in the next sentence. Either Party may terminate such status for any reason or no reason at all upon at least thirty (30) days’ notice to such effect to the other Party, which notice shall specify the date of termination; provided, however, that either Party my terminate such status immediately by and upon notice to the other Party in the event of a material breach of these Terms and Conditions by such other Party. Notwithstanding any termination of Ambassador’s status as Ambassador, the Company’s obligation to pay any referral fee that arose prior to such termination in accordance with the terms of these Terms and Conditions (or, in the case of any Talent Referral referral fee, that arose prior to such termination in accordance with the writing referred to in Section B of Schedule B) shall continue in effect. 

6. Relationship Between the Parties.

(a) Neither Party shall be the representative or agent of the other Party, nor shall either Party have any authority to make any representation or warranty, or to incur any liability or obligation, on behalf of the other Party or to bind the other Party with respect to third parties in any way. Without limiting the generality of the foregoing in this Section 6, in no event shall Ambassador make any representation or warranty regarding the Services or purport to enter into any contract with respect to delivery of Services. If the Company elects to enter into a contract with any Ambassador Sales Lead (as such term is defined in Schedule A) for the provision of Services or to hire any Ambassador Talent Lead (as such term is defined in Schedule B), it will do so directly and not through Ambassador.

(b) The Company shall have the sole and exclusive right to determine whether or not to enter into a contract with any Person whatsoever or to hire any Person whatsoever, as well as to determine the terms and conditions of any contract or of the employment of any Person, including, without limitation, the amount to be charged by the Company for any Services or paid to any employee. 

(c) Unless otherwise provided in these Terms and Conditions or agreed between the Parties in writing in any instance, each Party shall be solely responsible for all costs, expenses and liabilities incurred by it in performing its obligations under these Terms and Conditions. 

7. Marketing

(a) Anything to the contrary in Section 6(a) hereof notwithstanding, Ambassador may orally provide prospective customers with accurate general information regarding the Company and the Services, including, without limitation, information set forth in the Company’s marketing materials. In addition, Ambassador may provide to prospective customers marketing materials furnished to Ambassador by, or approved in writing by, the Company, provided that they shall not be changed from the form they were in when furnished to Ambassador by, or approved by, the Company. In no event shall Ambassador attempt to deceive or mislead (i) any Sales Lead with respect to the Company or the Services or (ii) any Talent Lead with respect to the Company or any position for which the Company may be hiring. 

(b) If agreed by the Parties, the Parties may engage in joint marketing efforts with respect to the Services such as, but not limited to, conference sales calls with prospective customers, the joint preparation of marketing materials and trade shows. Each Party shall bear its own expenses in connection with any such joint marketing efforts, unless otherwise specifically provided in these Terms and Conditions. 

8. Intellectual Property. Each Party shall retain all of its rights in its trademarks, service marks, patents, copyrights and other intellectual property. The Company’s provision of marketing or other materials to Ambassador shall not be deemed to be a transfer to Ambassador of any of the Company’s rights in any of its intellectual property contained in such materials or permission to use any of the same other than for the purpose of these Terms and Conditions and as specifically permitted herein or as otherwise specifically permitted by the Company; and Ambassador agrees not to do so. Without limiting the generality of the foregoing in this Section 8, the Company does not grant Ambassador any license in or to any of the Company’s intellectual property or any of it.

9. Confidentiality

(a)  Except as otherwise specifically provided in these Terms and Conditions, (i) neither Party shall reveal any, and each Party shall maintain the permanent confidentiality of all, information about the other Party learned in the course of the Parties’ performance under these Terms and Conditions and (ii) each Party agrees that it shall take all reasonable measures to protect the secrecy of, and to avoid the disclosure and unauthorized use of, any and all information that it learns about the other Party in the course of the Parties’ performance under these Terms and Conditions. Without limiting the foregoing, each Party shall take with regard to the confidentiality of all information that it so learns at least those measures that it would take to protect the confidentiality of its own most highly confidential information. Ambassador shall maintain the Company’s proprietary rights notices on all documents furnished to it by the Company and on all copies thereof (in either case whether digital or non-digital). For purposes of this Section 9, the existence and terms of these Terms and Conditions shall be deemed to be information about the other Party learned in the course of the Parties’ performance under these Terms and Conditions.

(b) Each Party agrees that information that it learns about the other Party in the course of the Parties’ performance under these Terms and Conditions shall be used solely to further the purposes of these Terms and Conditions and not for any other purpose (including, without limitation, to affect adversely or to compete with the business of the other Party).

(c) Upon the termination of these Terms and Conditions by either Party hereto, or at any time upon the request of the Company, Ambassador shall immediately return to the Company all marking materials and other materials provided to Ambassador by the Company and all copies thereof made by Ambassador and shall immediately delete any of the same in digital form.

(d) Neither Party shall have any confidentiality obligation hereunder to the extent that information regarding the other Party received by it (i) has been made public (other than through breach of the provisions hereof), (ii) was in the receiving Party’s possession prior to its receipt by the receiving Party in connection with these Terms and Conditions, provided that such information was not when received, and is not at any relevant time, subject to a confidentiality obligation, (iii) is hereafter obtained from third parties, provided that such information is not when received, and is not at any relevant time, subject to a confidentiality obligation, or (iv) in the opinion of the receiving Party’s counsel such information must be disclosed pursuant to court order.  Prior to making any disclosure pursuant to the exception set forth in clause (iv) of the immediately preceding sentence, the receiving Party shall give the other Party not less than fifteen (15) days prior notice in writing in order to permit the other Party, if it shall so elect, to obtain a protective or other order of a court or regulatory agency prohibiting or protecting against such proposed disclosure.

10. Terms and Conditions Non-Exclusive. These Terms and Conditions shall be non-exclusive, meaning that Ambassador shall be free to refer other parties in the same business as, and providing the same services as, the Company and that the Company shall be free to engage other parties to make referrals of it and the Services. The provisions of Section 9 hereof shall, however, apply to, and in respect of the Parties’ actions in connection with, all such other relationships. 

11.  Representations and Warranties; Indemnification.

(a) Each Party represents and warrants that it has full right, power and authority to enter into and to perform its obligations under these Terms and Conditions. EXCEPT AS PROVIDED IN THE IMMEDIATELY PRECEDING SENTENCE, NEITHER PARTY MAKES ANY REPRESENTATION OR WARRANTY TO THE OTHER OF ANY KIND OR NATURE REGARDING ITSELF OR ITS PRODUCTS OR SERVICES INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OF NON-INFRINGEMENT.

(b) Each Party shall indemnify and hold the other Party harmless from and against any and all third-party claims, actions, proceedings, costs, expenses (including reasonable attorney’s fees and expenses), losses and liabilities, arising out of any breach by the first Party of, or any default in respect of, any of its representations, warranties, covenants or agreements in these Terms and Conditions. In no event shall the reference to third-party matters in this subsection (b) be deemed to limit the right of each Party to seek to enforce directly against the other Party such other Party’s representations, warranties, covenants and agreements in these Terms and Conditions.

(c) Except in the case of a Party’s breach of or default under these Terms and Conditions that relates to the other Party’s intellectual property rights or any of them (and in any such case whether such breach or default is at issue in respect of a claim for indemnification or in respect of direct enforcement of these Terms and Conditions), neither Party shall be liable for any incidental, indirect, special or consequential damages whatsoever (including, but not limited to, lost profits), arising from or in connection with a breach of or default under these Terms and Conditions, even if the breaching or defaulting Party has been advised of, knew of or should have known of the possibility of such damages.

12. Miscellaneous

(a) All notices, demands and other communications given hereunder shall be in writing (whether or not so specified in any instance herein) and shall be given, if to the Company, to it by email at ambassador@1648factory.com, with the subject “Ambassador Notice”, with a copy given to Bennett & Samios LLP by email to it at tbennett@bennettsamios.com, and if to the Ambassador, to the Ambassador at the Ambassador’s email address as set forth on the Ambassador’s Application, with the subject “Ambassador Notice”; or, in the case of either Party, to such other email address as such Party may have designated as its email address for notices by notice to such effect given to the other Party in a manner provided for in this Section 12(a) (with a copy as indicated). Any notice given as provided in this Section 12(a) shall be deemed to have been given when received by the recipient.

(b) These Terms and Conditions may be amended from time to time. Each Sales Referral shall be governed by these Terms and Conditions in such form as they may be in at the time that such Sales Referral is made and each Talent Referral shall be governed by these Terms and Conditions in such form as they may be in at the time that the Company contacts Ambassador with a request for such Talent Referral. Therefore, prior to making any Sales Referral or accepting any request for a Talent Referral, Ambassador should review these Terms and Conditions as in effect at such time (including the “Last Revised” date at the beginning of these Terms and Conditions). The most recent version of these Terms and Conditions can be found at https://www.1648factory.com/ambassador-program.

(c) These Terms and Conditions shall be governed by and construed and interpreted in accordance with the laws of the United States State of New York applicable to agreements entered into wholly within, and to be performed wholly within, the State of New York, whether to not, as an agreement between the Parties, these Terms and Conditions were entered into and/or are to be performed within the State of New York.

(d) (i) If, with respect to any Sales Referral or Talent Referral, 1648 Factory Inc. is the “Company”, then any controversy or claim arising out of or relating to these Terms and Conditions, or the breach hereof, shall be resolved exclusively by arbitration before the American Arbitration Association (the “AAA”) in New York, New York, in accordance with the AAA’s Commercial Arbitration Rules; and if, with respect to any Sales Referral or Talent Referral, 1648 Factory GmbH is the “Company”, then any controversy or claim arising out of or relating to these Terms and Conditions, or the breach hereof, shall be resolved exclusively by arbitration before the International Centre for Dispute Resolution (the “ISDR”) in Hammer Strasse 165, 48153 Muenster, Germany, in accordance with the ISDR’s Commercial Arbitration Rules. Any such arbitration shall be held before a single arbitrator, whose decision shall be final, and shall be held in the English language. With respect to any such arbitration, the judgment on the award rendered by the arbitrator may be entered in and enforced by any court having jurisdiction. In the event of any such arbitration, (A) during the course of the same, each party shall pay one half of the costs of the arbitration and of the fees of the arbitrator as well as all of its own legal fees and expenses and (B) promptly after the arbitrator renders his or her decision, the non-prevailing party shall reimburse the prevailing party for all of the prevailing party’s costs and expenses relating to the arbitration, including, without limitation, the costs of the arbitration and the fees of the arbitrator and all of the prevailing party’s reasonable attorneys’ fees and expenses.

 (ii)  Notwithstanding the provisions of Section 12(d)(i), in the event of a breach or threatened breach by a party of Section 8 or Section 9 of these Terms and Conditions, the other Party shall have the right to seek injunctive relief to prevent or to stop such breach in any United States or non-United States court having jurisdiction, in any case in which it may be permissible if the parties so agree, without the necessity of posting a bond 

(e) These Terms and Conditions represent the entire understanding of the Parties with respect to the subject matter hereof and supersede any and all prior agreements (written or oral) between the Parties with respect to the subject matter hereof, all of which prior agreements are subsumed herein. The provisions of these Terms and conditions shall prevail over any inconsistent statements or provisions set forth on the Company’s website.

(f) All provisions of these Terms and Conditions that by their terms contemplate performance thereof after the termination of Ambassador’s status as Ambassador shall survive such termination for the relevant period contemplated with respect to such performance or, if no period is specified, for as long as permitted by applicable law. Without limiting the generality of the foregoing in this subsection (c), the provisions of Sections 8, 9 and 11 and of this Section 12 shall survive the termination of Ambassador’s status as Ambassador for as long as permitted by applicable law. 

(g) These Terms and Conditions will be construed without regard to any presumption or rule of construction to the effect that a written agreement will be construed against the Party that drafted such agreement.

(h) No modification, amendment or waiver of any provision of these Terms and Conditions, and no consent to any departure by either Party from any provision hereof, will be effective unless made in a writing signed by the Party against whom or which enforcement of such modification, amendment, waiver or consent shall be sought. Any such waiver or consent shall be effective only in the specific instance and for the specific purpose for which it was given. The grant of any waiver or consent in any instance shall not require that the Party granting the same grant a waiver or consent in any subsequent instance, even if the circumstances surrounding the subsequent instance are the same as those surrounding the earlier instance.

(i) Ambassador shall not be permitted to assign any of its rights under, or to delegate any of its duties under, these Terms and Conditions, without the written consent of the Company, which the Company shall be under no obligation to grant. 

(j) These Terms and Conditions shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns. 

Schedule A

Sales Referrals

1. Ambassador will register in the Company’s referral software and will be issued a unique Sales Referral link. Ambassador will refer Sales Leads to the Company’s contact person(s) (as provided to Ambassador) via such link. Sales Referrals shall include the full name of and full contact information for the Sales Lead being referred (and, if the Sales Lead is not an individual, the name and position of a contact person at such Sales Lead) and all relevant contact information with respect to such Sales Lead. In addition, if known to Ambassador, Ambassador will also provide details about the Sales Lead’s need for Services.

2. Within ten (10) business days of its receipt of a Sales Referral from Ambassador, the Company shall either (i) register the Sales Lead in Ambassador’s name (in which case such Sales Lead shall be an “Ambassador Sales Lead”) and notify Ambassador in writing of such fact or (ii) notify Ambassador in writing that the Sales Lead has been rejected. The Company may reject a Sales Lead for any reason or for no reason at all. If in its rejection of a Sales Lead the Company advises Ambassador that such Sales Lead is a current customer of the Company or a Person that has been a customer of the Company within the past twenty-four (24) months, or that the Sales Lead is a Current Company Sales Lead (as such term is defined in the next sentence), Ambassador shall not refer such Sales Lead to any other Person. A “Current Company Sales Lead” is a Person (i) that the Company has identified as a prospect for the purchase of Services (whether or not the Company has communicated with such Person) or (ii) that the Company has previously registered as a Sales Lead in the name of a Person other than Ambassador. 

3. If the Company makes the Sales Lead an Ambassador Sales Lead, Ambassador will promptly introduce such Company personnel (or other Persons) as may be designated by the Company to such Ambassador Sales Lead in a phone call or by email, as the Company shall determine. 

4. If during the twelve (12)-month period after the introduction has been made the Company signs a contract with the Ambassador Sales Lead to provide Services, the Company will pay Ambassador a referral fee with respect to such contract as follows: 

(i)If the Services provided under the contract are Engineering, Design or Growth Services, the referral fee will be equal to five percent (5%) of the Net Proceeds (as defined below in this Schedule A) received by the Company from such contract for services provided during (but not after) the first twelve (12) months after the commencement of the term of such contract. Such referral fee shall be payable only from payments actually received by the Company under such contract and, for the avoidance of doubt, in no event shall the Company be required to pay any referral fee to Ambassador except from payments to the Company by the customer under the subject contract.

(ii) If the Services are Venture Project or Venture Program Services, the referral fee will be equal to five percent (5%) of the Net Proceeds (as defined below in this Schedule A) received by the Company from such contract for services provided during (but not after) the first thirty-six (36) months after the commencement of the term of such contract. Such referral fee shall be payable only from payments actually received by the Company under such contract and, for the avoidance of doubt, in no event shall the Company be required to pay any referral fee to Ambassador except from payments to the Company by the customer under the subject contract.

5. Payment of any referral fee arising from a client’s payment of a Company invoice shall be made not later than sixty (60) days after the date on which such client receives such invoice or ten (10) days after payment of such invoice is received by the Company, whichever is later. 

6. In no event shall Ambassador be entitled to any referral fee on or with respect to any contracts signed with an Ambassador Sales Lead other than the first contract signed with such Ambassador Sales Lead.

7. “Net Proceeds” means amounts actually received by the Company for the provision of its Services after deduction, of (1) all fees and charges paid or payable to third parties (including, but not limited to, any licensor or vendor) with respect to the Services provided under the subject contract, (b) all reimbursements paid or payable by the customer to the Company for other expenses incurred by the Company, (c) all refunds or other adjustments paid or payable to or for the account of the customer with respect to the Services provided under the subject contract, and (d) all taxes paid or payable to the Company by the customer.

8. If Ambassador has a website, Ambassador shall add the Company’s Sales Referral widget to such website.

Schedule B

Talent Referrals

1. Ambassador will refer Talent Leads to the Company only in response to the Company’s provision to Ambassador of specific employment openings within the Company. Ambassador will refer Talent Leads to the Company’s contact person(s) as provided to Ambassador, such referrals to be in writing and to include the full name of and full contact information for the Talent Lead being referred and any other information requested by the Company when it advises the Ambassador of the employment opening. Along with any such information, Ambassador will also furnish the Company with a copy of the Talent Lead’s current CV.

2. All matters relating to the referral fee to be paid to Ambassador in respect of any particular Talent Referral (including, without limitation, the circumstances that will give rise to the Company’s obligation to pay a referral fee, the amount of any such fee, and the timing of the payment of such fee) shall be set forth in a writing signed by Ambassador and the Company at the time that the relevant job opening is provided to Ambassador.

3. Within ten (10) business days of its receipt of a Talent Referral furnished by Ambassador in response to an employment opening provided by the Company, the Company shall either (i) register the Talent Lead in Ambassador’s name (in which case such Talent Lead shall be an “Ambassador Talent Lead”) and notify Ambassador in writing of such fact or (ii) notify Ambassador in writing that the Talent Lead has been rejected. The Company may reject a Talent Lead for any reason or for no reason at all. If in its rejection of a Talent Lead the Company advises Ambassador that such Talent Lead is a current employee of the Company or that such Talent Lead is a Current Company Talent Lead (as such term is defined in the next sentence), Ambassador shall not refer such Talent Lead to any other Person. A “Current Company Talent Lead” is a Person (i) that the Company has identified as a prospect for employment by the Company (whether or not the Company has communicated with such Person) or (ii) that the Company has previously registered as a Talent Lead in the name of a Person other than Ambassador. 

4. If the Company makes the Talent Lead an Ambassador Talent Lead, Ambassador will promptly introduce such Company personnel (or other Persons) as may be designated by the Company to such Ambassador Talent Lead in a phone call or by email, as the Company shall determine.