AirDeck Partner Referral Agreement

This AirDeck Referral Agreement (“Agreement”) is made and entered into by and between AirDeck, Inc. (“AirDeck”) and you (the “Referring Party”).

Appointment

AirDeck hereby appoints Referring Party as a non-exclusive, independent referral source for AirDeck Services and/or consulting services (“Services”), subject to the terms and conditions of this Agreement. Employees of AirDeck who receive commissions as part of their compensation, as well as the immediate family (spouse, parents, siblings, and children) and household members of such employees, are not eligible to participate in the referral program described in this Agreement. “AirDeck Services” means the application(s) created and hosted by AirDeck or its agents and made available for remote access and use by a customer under an order form.

Non-Exclusivity

Referring Party acknowledges that AirDeck may enter into referral agreements or other similar arrangements with other parties and that Referring Party shall have no rights under such agreements or to any Referral Fees (see Section 7 (Referral Fees)) for customers referred to AirDeck by others (including customers referred to AirDeck by Potential Customers or Referred Customers) or identified by AirDeck itself. For example, in the event that Referring Party refers a reseller (i.e., not an end user of the Services) to AirDeck, and such reseller refers its customers (i.e., end users of the Services) to AirDeck, the Referring Party shall not be entitled to any Referral Fees based on Services revenue received from the customers of such reseller. The Referring Party shall receive no Referral Fees for referring a reseller or similar party to AirDeck (i.e., a reseller or similar party cannot be a Referred Customer under this Agreement).

Referrals

Potential Customers. Subject to the terms and conditions of this Agreement, the Referring Party may from time to time refer potential customers (each, a “Potential Customer”) to AirDeck by means of an introductory call, an email, or other written correspondence.

AirDeck Option. AirDeck, in its sole discretion, shall have the option to enter into, or decline to enter into, an agreement with any Potential Customer. In the event AirDeck declines, for any reason, to enter into an agreement with any Potential Customer, AirDeck shall have no obligation to Referring Party under this Agreement or otherwise with respect to such Potential Customer.

Referred Customers. If (a) Potential Customer: (i) has not previously entered into an agreement with AirDeck; (ii) has not previously been referred or introduced to AirDeck by any other person, as determined by AirDeck in its sole and absolute discretion; and (iii) is not currently an engaged prospect of AirDeck, as determined by AirDeck in its sole and absolute discretion; and (b) AirDeck enters into a written agreement with such Potential Customer to become an end user of the Services and upon such terms and conditions acceptable to AirDeck and such Potential Customer, within ninety (90) days of AirDeck receiving the referral for such Potential Customer from Referring Party, then such Potential Customer shall be considered a “Referred Customer” for purposes of this Agreement.

Qualified Referred Customer. If a Referred Customer enters into a written agreement with AirDeck at an annual contract value equal to or greater than Three Thousand US Dollars ($3,000), then such Referred Customer shall be considered a “Qualified Referred Customer” for the purposes of this agreement and AirDeck shall pay a referral fee to the Referring Party (“Referral Fee”) as set forth in Section 7 (Referral Fees).

Referral Disputes. In the event a referral of a Potential Customer is disputed among one or more referral sources, Referring Party hereby and acknowledges and agrees that AirDeck alone, in its sole and absolute discretion, shall determine which party, if any, is entitled to a Referral Fee with respect to such Potential Customer.

No Authority or License; Indemnity

It is understood that Referring Party is acting as a finder only and shall have no authority to enter into any agreements, obligations, or commitments on AirDeck’s behalf, or to negotiate the terms of Potential Customers’ agreements with AirDeck. Referring Party hereby agrees to indemnify, defend, and hold harmless AirDeck from and against any claims, actions, lawsuits, damages, awards, judgments and costs (including reasonably attorneys’ fees) arising out of (a) any agreements, obligations, or commitments undertaken by Referring Party in violation of this Section or any representations or warranties made by Referring Party that have not been expressly approved in writing by AirDeck; or (b) Referring Party’s breach of this Agreement, negligence, violation of applicable law, or other acts or omissions of Referring Party resulting, in whole or in part, in a third party claim being asserted against AirDeck. Referring Party acknowledges that no license is granted to Referring Party hereunder to any AirDeck Services.

Term and Termination

The term of this Agreement shall commence on the Effective Date and shall continue in full force until the Agreement is terminated as provided herein (the “Term”). Referring Party or AirDeck may terminate this Agreement at any time, and for any reason or no reason, by providing written notice to the other party at least ten (10) days prior to the date of termination (the “Termination Date”). Upon termination of this Agreement, Referring Party shall immediately cease all Services. After the termination of this Agreement, AirDeck shall pay to Referring Party any Referral Fee earned by Referring Party prior to the Termination Date (as determined by AirDeck in its sole and absolute discretion) and not paid to Referring Party prior to the Termination Date, all in accordance with the terms of Section 7. Notwithstanding anything herein to the contrary, Referring Party shall not be entitled to any Referral Fees due to it as of or following the Termination Date if AirDeck terminated this Agreement for Referring Party’s breach of Section 1 (Appointment), Section 4 (No Authority or License), Section 6 (Competitor Restriction), Section 8 (Confidentiality), or Section 10 (Warranty) of this Agreement. The following Sections shall survive any termination of this Agreement: 4 (No Authority or License), 5 (Term and Termination), 6 (Competitor Restriction), 7 (Referral Fees), 8 (Confidentiality), 9 (Remedies), 11 (Disclaimer of Warranties), 12 (Limitation of Liability and Damages), and 13 (General Provisions).

Competitor Restriction

Notwithstanding anything herein to the contrary, during the Term, Referring Party shall not refer any AirDeck customer or prospect known to Referring Party as a result of the relationship with AirDeck under this Agreement, to any person, partnership, joint venture, corporation, or other organization or entity in competition with AirDeck.

Referral Fees

For each new agreement entered into by AirDeck with a Qualified Referred Customer, AirDeck agrees to pay an amount equal to ten percent (10%) of the annualized recurring contract value for that agreement during the first 12 months of the Agreement. AirDeck agrees to pay such commissions to the Referring Party on each Qualified Referred Customer resulting in a new account within thirty (30) calendar days of receipt of payment from such Qualified Referred Customer. Upon termination of this Agreement, AirDeck shall pay the Referring Party all accrued and owing commissions as of the date of termination as well as remain obliged to pay any future commissions earned per the terms described above. For the avoidance of doubt, no Referral Fees shall be due and payable by AirDeck to Referring Party hereunder with respect to a Qualified Referred Customer to the extent payments from such Qualified Referred Customer are not received by AirDeck (including, but not limited to, payments returned for nonsufficient funds or credit card charge backs).

Confidentiality

Referring Party acknowledges that by reason of its relationship to AirDeck hereunder, it may have access to confidential and proprietary information and material concerning AirDeck’s business, plans, customers, technology, and products (“Confidential Information”) including, but not limited to, non-public portions of the AirDeck Services, intellectual property, trade secrets, formulas, processes, methods, customer information, know how, financial data and any information that is not publicly known and derives value from not being publicly known . The term “Confidential Information” does not include information which: (a) becomes generally available to the public other than as a result of a disclosure by Referring Party, or as a result of wrongful conduct of any third party; (b) was rightfully available to Referring Party on a non-confidential basis prior to its disclosure by AirDeck or its representatives; (c) rightfully becomes available to Referring Party on a non-confidential basis and through proper means from a source other than AirDeck or its representatives, provided that such source is not bound by a confidentiality agreement with AirDeck or its representatives or otherwise prohibited from transmitting the information to Referring Party or its representatives by a contractual, fiduciary or other legal obligation; or (d) is independently developed by Referring Party without use of or reference to Confidential Information, as corroborated by contemporaneous records and documents of Referring Party. Referring Party agrees that it will not use in any way for its own account or the account of any third party, nor disclose to any third party, any Confidential Information of AirDeck. In the event of termination of this Agreement, there shall be no use or disclosure by Referring Party of any Confidential Information of AirDeck and any materials related to AirDeck shall be immediately returned to AirDeck. Referring Party acknowledges that the provisions of this Section 8 (Confidentiality) are reasonable and necessary for the protection of AirDeck and that AirDeck will be irrevocably damaged if such covenants are not specifically enforced.

Remedies

Referring Party acknowledges and agrees that AirDeck would be irreparably damaged and cannot be made whole by monetary damages in the event of a breach by Referring Party of any provision of this Agreement. Accordingly, in the event of any such breach, AirDeck shall be entitled, without the requirement of posting a bond or other security, to injunctive relief, specific performance or any other appropriate equitable remedy, in addition to any other remedies to which AirDeck may be entitled at law, including, without limitation, monetary damages if determinable. AirDeck shall also be entitled to reasonable attorneys’ fees incurred in the enforcement of the provisions of this Agreement. The remedies herein provided shall be cumulative and no single remedy shall be construed as exclusive of any other or of any remedy provided at law.

Warranty

Referring Party represents and warrants that it has the full power, capacity, and authority to enter into and perform this Agreement, and that its performance of this Agreement does not violate or conflict with any other agreement to which Referring Party is a party.

Disclaimer of Warranties

AIRDECK DISCLAIMS ALL WARRANTIES REGARDING THIS AGREEMENT WHETHER EXPRESS, IMPLIED, OR STATUTORY, ORAL OR WRITTEN.

Limitation of Liability and Damages

NEITHER AIRDECK NOR ITS VENDORS AND LICENSORS SHALL HAVE ANY LIABILITY TO REFERRING PARTY OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF AIRDECK IS ADVISED OF THE POSSIBLITY OF SUCH DAMAGES.  THE TOTAL LIABILITY OF AIRDECK AND ITS VENDORS AND LICENSORS TO REFERRING PARTY OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES SHALL NOT EXCEED THE TOTAL AMOUNT OF REFERRAL FEES PAID TO REFERRING PARTY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY.

General Provisions

Assignment. The Referring Party may not assign, transfer, or delegate its rights or obligations under this Agreement without AirDeck’s prior written authorization. AirDeck reserves the right to assign, transfer, or delegate its rights and obligations hereunder, as it deems appropriate. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns.

Governing Law. This Agreement will be governed by, and construed and interpreted according to, the substantive laws of the State of Wisconsin, without regard to its conflict of law provisions. The parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the state or federal courts located in Dane County, Wisconsin.

Waiver/Severability. Any waiver, in whole or in part, of any remedy or provision of this Agreement will not be considered to be a waiver of any other provision or remedy. If any term of this Agreement is found to be unenforceable or invalid for any reason, all other terms will remain in full force and effect.

Entire Agreement. This Agreement, together with any other exhibits and attachments hereto and thereto, constitutes the entire agreement between the parties regarding its subject matter and supersedes any and all prior or contemporaneous letters, memoranda, representations, discussions, negotiations, understandings, and agreements, whether written or oral, with respect to such subject matter, all of the same being merged herein. No other terms and conditions or agreements (“Additional Terms”) shall be binding on AirDeck. All such Additional Terms shall be of no force or effect and shall be deemed rejected by AirDeck in their entirety. In the event of a conflict between the body of this Agreement and any exhibit or other attachment, this Agreement shall govern.

Relationship of Parties. The parties to this Agreement are independent contractors; there is no relationship of agency, partnership, joint venture, employment, or franchise between the parties. Neither party has the authority to bind the other or to incur any obligation on its behalf. Referring Party is solely responsible for the payment of all taxes imposed or related to Referring Party’s activities hereunder.

No Third Party Beneficiaries. Except for AirDeck’s suppliers and licensors, this Agreement shall not be construed to make any person or entity a third-party beneficiary hereof.

Counterparts. This Agreement may be signed in counterparts, all of which upon execution and delivery shall be considered an original and together shall constitute one agreement. Signed facsimile copies of this Agreement will legally bind the parties to the same extent as original documents.

Notices. Any notice required or permitted to be given by either party under this Agreement will be made in writing and shall be deemed to have been received upon delivery by hand, by facsimile (followed by delivery of a hard copy thereof within five (5) business days of such facsimile), or via reputable courier service, expense prepaid, addressed to the party as set forth on the signature block hereof or to such other address as a party may designate in writing to the other party.

Last revised: 12/9/2022