This Sales Partner Agreement (the “Agreement“) is made and entered into as of this __ day of __________, 2023 (the “Effective Date“) by and between Viably Capital Inc., a corporation incorporated under the laws of the State of Delaware located at 215 East Chatham Street, Suite 215, Cary, NC, 27511(“Company“) 

and 

[SALES PARTNER] a corporation incorporated under the laws of ___________ located at _______________ (“Partner“). 

The parties herein may be referred to individually as a “Party” and collectively as the “Parties“.

WHEREAS, Company is a provider and owner of the following funding platform: VIABLY (the “Platform“); and

WHEREAS, Partner represents it is capable of referring Potential Customers for subscribing to the Platform.

NOW THEREFORE, in consideration of the mutual covenants set forth below, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:

1. SERVICES.
   1.1 General. Partner shall solicit sales of Platform end-use subscriptions from prospective customer business entities (each, a “Potential Customer“), as defined within the criteria set out in ANNEX A hereto (the “Customer Criteria“). The Partner shall cooperate on an ongoing basis with such employees, consultants and contractors of the Company, as well as its corporate affiliates (each, an “Affiliate“), as determined by the Company from time to time. The Company may require the Partner to provide reports or other types of ongoing information concerning its activities hereunder as determined from time to time, whether or not set forth herein.
   1.2 Restrictions. Partner shall not (a) engage in any deceptive, misleading, or unethical practices that are or might be detrimental to Company or the Platform; (b) make any disparaging statement about Company or the Platform; (c) misrepresent the nature or scope of Partner’s activities hereunder; or (d) otherwise cause harm to Company’s good name and business reputation. For the avoidance of doubt, nothing herein shall be construed as requiring Company to negotiate, or enter into, an agreement with any Potential Customer or Qualified Customer (each as defined below).
   1.3 Non-Exclusivity. Nothing in this Agreement shall be construed as prohibiting or restricting the Company from engaging in similar engagements with third parties, or otherwise from performing or seeking to perform any action or operation.

2. REFERRAL FEES.
   2.1 Referral Fees. In respect of each Eligible Agreement (defined below), Partner will be entitled to a referral fee in accordance with the terms and conditions set forth in ANNEX B hereto (each, a “Referral Fee“).
   2.2 Sole Consideration. The Referral Fees (if any) represent the sole consideration to which Partner is entitled in connection with this Agreement, and Partner shall not be entitled to, and hereby irrevocably waives, any claim for additional consideration for fees, royalties, expense reimbursement, equity, or any other payment or compensation in connection with this Agreement. Company shall be entitled to deduct from and set off against Referral Fees any amounts that the Partner is required to pay or return to Company pursuant to this Agreement, any other agreement, any law, or otherwise, and/or any amounts that Company may have overpaid to Partner in prior periods or invoices. 

 3. OWNERSHIP. As between the Parties, Company is and shall be the sole and exclusive owner of, and is hereby irrevocably assigned, all right, title, and interest (including without limitation all intellectual property rights in and to: (a) the Platform; (b) its Confidential Information; (c) any marketing material generated hereunder; (d) its trademarks, trade names, logos, design marks, service marks, service names, and brand names (“Marks“); and (e) any modifications, customizations, adaptations, translations, improvements, and/or derivative works of or to any of the foregoing (regardless of authorship or inventorship). No ownership right or license in or to any Company intellectual property rights is conveyed or granted hereunder.

Any authorized use by Partner of any Marks, shall be in accordance with Company’s usage guidelines. Any goodwill or other benefit derived as a result of use of any use of the Marks shall inure to the sole benefit of Company. Partner shall not, at any time during or after the Term: (a) claim any right, title, or interest in or to, attempt to register in any jurisdiction, or do anything that may adversely affect the validity or enforceability of, any of the Marks; and/or (b) adopt, register or use in any manner whatsoever any name, mark, logo, title, expression, word, device, symbol, or combination thereof, which in any way imitates, resembles, dilutes, or is similar to any of the Marks. 

4. CONFIDENTIALITY. Each Party and/or its Affiliates (the “Recipient“) may have access to certain non-public or proprietary information and materials of the other Party and/or its Affiliates (the “Discloser“), whether in tangible or intangible form (“Confidential Information“). Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient’s possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose the Discloser’s Confidential Information to any third party, except to its employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings). Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect the Discloser’s Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser’s Confidential Information solely for the purposes expressly permitted under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to extent required by such law, regulation or order (as the case may be). Upon expiration or termination of this Agreement, or otherwise upon written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it), and certify compliance writing.

5. REPRESENTATIONS AND WARRANTIES; DISCLAIMER. 

5.1 Representations and Warranties. Partner represents and warrants that its agreement to this Agreement and the performance of any work and delivery of any services will not conflict with or violate any commitment, agreement or understanding Partner has or will have with any other person or entity and there is nothing that will prevent Partner from performing its obligations under the terms and conditions imposed on it by this Agreement.
5.2 Disclaimer. THE PLATFORM, MARKETING MATERIALS, MARKS, AND ANY OTHER ITEMS OR SERVICES PROVIDED OR MADE AVAILABLE BY COMPANY OR ITS AFFILIATES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED. NOR DOES COMPANY GUARANTEE ANY MINIMUM NUMBER OF CUSTOMERS, REQUESTS, OR TRANSACTIONS.

6. INDEMNIFICATION. Partner shall indemnify and hold harmless Company and its Affiliates (each, an “Indemnitee“) against any costs, expenses (including reasonable attorneys’ fees), liabilities, and/or damages incurred or suffered by the Indemnitee, or awarded or imposed against the Indemnitee by a court or governmental agency, or otherwise paid in settlement, in connection with: (a) a third party claim that is related to any willful misconduct, negligence, or breach of this Agreement by Partner; and/or (b) any obligation imposed upon the Indemnitee to pay any withholding taxes, social security, unemployment or disability insurance or similar items in connection with compensation received by Partner or deriving from the adjudication of the existence of an employer-employee relationship between Company and Partner and/or any Partner employee or agent.   

7. LIMITATION OF LIABILITY. EXCEPT FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT, A BREACH OF CONFIDENTIALITY, AND/OR A BREACH OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES. THE FOREGOING EXCLUSION SHAL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE, REGARDLESS OF THE THEORY OF LIABILITY, AND EVEN IF A PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8. TERM AND TERMINATION.
8.1 Term. This Agreement shall commence on the Effective Date and, unless terminated earlier in accordance with the terms of this Agreement, shall remain in full force and effect for a period of twelve (12) months (“Initial Term“). Following the Initial Term, the Parties may, by way of a mutually signed written instrument, renew this Agreement for one or more further periods as mutually agreed (each a “Renewal Term“, and together with the Initial Term, the “Term“).
8.2 Termination for Convenience. Company may terminate this Agreement for convenience upon thirty (30) days’ prior written notice to the Partner.
8.3 Termination for Cause. Each Party may terminate this Agreement immediately upon written notice to the other Party if: (a) the other Party commits a material breach under this Agreement and, if curable, fails to cure that breach within thirty (30) days after receipt of written notice specifying the material breach (except that for payment defaults, such cure period will be seven days); and/or (b) upon the occurrence of any of the following events in respect of such other Party: (i) a receiver is appointed for the other Party or its property, which appointment is not dismissed within sixty (60) days; (ii) the other Party makes a general assignment for the benefit of its creditors; (iii) the other Party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief Law, which proceedings are not dismissed within sixty (60) days; or (iv) the other Party is liquidating, dissolving or ceasing normal business operations. 
8.4 Effect of Termination; Survival. Upon the effective date of expiration or termination of this Agreement, Partner shall cease all services and activities hereunder, cease use of any Company credentials and collateral, remove all Marks and similar references of/to Company from Partner’s website and marketing materials, and destroy and/or permanently delete all Confidential Information of Company. This Agreement is entered into by Company and Partner on the express understanding that: (a) the Partner carries out its performance hereunder bearing all financial and commercial risks related thereto and, therefore, it and its activities are not subject to agency laws and related notification and compensation requirements applicable to commercial agents; and (b) upon expiration or termination of this Agreement, Partner shall in no event be entitled to (and hereby waives) any payment by way of compensation or otherwise from Company, in respect of the sales organization set up by Partner, the investments made, if any, during the Term of this Agreement, any benefits of Company stemming from such investments either during or after the Term of the Agreement, or any costs incurred by Partner in these various respects. Any provision of this Agreement that, in order to fulfill the purposes of such provisions, needs to survive the termination or expiration of this Agreement, shall survive for as long as necessary to fulfill such purposes, as shall Sections3  (Ownership) through ‎‎‎9  (Miscellaneous) inclusive. 

9. MISCELLANEOUS.
9.1 Entire Agreement and Amendments. This Agreement (and its annexes) represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. In entering into this Agreement, neither Party is relying on any representation or statement not expressly specified in this Agreement. This Agreement may only be amended by a written instrument duly signed by each Party. The section and subsection headings used in this Agreement are for convenience only. Company may use Partner’s name and logo on Company’s website and in its promotional materials to state that Partner is a channel partner of Company.
9.2 No Conflict. Partner shall not, during the Term, without the Company’s express written consent, engage in any activity which would in any way conflict with the services provided hereunder, or which are competitive with the business or anticipated business of the Company, or that are in conflict with Partner’s obligations hereunder or detrimental to the interests of the Company in the sole opinion of the Company. 
9.3 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) the Parties agree that the court making such determination shall have the power to limit the provision, to delete specific words or phrases, or to replace the provision with a provision that is legal, valid and enforceable and that most closely approximates the original legal intent and economic impact of such provision, and this Agreement shall be enforceable as so modified in respect of such jurisdiction. In the event such court does not exercise the power granted to it as aforesaid, then such provision will be ineffective solely as to such jurisdiction with a valid, legal and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
9.4 Waiver and Remedies. No failure or delay on the part of either Party in exercising any right or remedy hereunder will operate as a waiver thereof, nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof, or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, duly signed by the waiving Party, and will be valid only in the specific instance in which given. Except as may be expressly provided otherwise in this Agreement, no right or remedy conferred upon or reserved by either Party under this Agreement is intended to be, or will be deemed, exclusive of any other right or remedy under this Agreement, at law, or in equity, but will be cumulative of such other rights and remedies. 
9.5 Relationship. The relationship of the Parties is solely that of independent contractors, and neither Party nor its employees are the servants, agents, or employees of the other. Nothing in this Agreement shall be construed to create a relationship of employer and employee, principal and agent, joint venture, franchise, partnership, association, or otherwise between the Parties. It is hereby clarified that any right granted to the Company to instruct and/or oversee the services hereunder by the Partner is granted in order to ensure the performance of the services in full and not to imply or justify an employer-employee relationship between the Company on the one hand, and the Partner (or its personnel) on the other hand. Partner shall have no right, power or authority to do (or purport to have the right, power or authority to do) any of the following: (i) undertake, incur, or assume any obligation, liability or commitment on behalf of Company or its Affiliates; (ii) make or offer any promises, representations, warranties, or guarantees about the Platform or Company; or (iii) enter into any Platform licensing agreement with a Qualified Customer. Neither Partner nor its personnel are eligible to participate in any of Company’s employee benefit plans, fringe benefit programs, group insurance arrangements, or similar programs. Company will not be obligated to provide workers compensation, disability insurance, social security/national insurance, unemployment compensation coverage, or any other statutory benefit to Partner’s personnel. Partner alone will be responsible: (a) for the payments of all taxes applicable to Partner as an independent contractor; and (b) to pay any and all payments, salary, wages, taxes and all other benefits (including without limitation any amounts due to any relevant social security or national insurance body) with respect to Partner’s personnel, and Partner further undertakes to acquire for its personnel pension coverage in a customary amount. Partner (on behalf of itself and its personnel) hereby releases and forever discharges the Company from any and all claims, which Partner and/or its personnel ever had, now has, or may claim to have, against the Company in connection with the existence of any employer-employee relationship between the Company and the Partner or its personnel.
9.6 Governing Law; Jurisdiction. This Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware, USA without regard to its conflicts of law rules. Any claim, dispute or controversy between the Parties will be subject to the exclusive jurisdiction and venue of the courts located in Wilmington, Delaware, and each Party hereby irrevocably submits to the personal jurisdiction of such courts and waives any jurisdictional, venue, or inconvenient forum objections to such courts. Notwithstanding the foregoing, Company may seek injunctive (and other equitable) relief in any court that has competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods is hereby disclaimed. 
9.7 Notices. All notices or other communications provided for in connection with this Agreement shall be in writing and shall be given in person, by courier, by facsimile, email, or by registered or certified mail, postage prepaid, addressed as set forth above. All notices and other communications delivered in person or by courier service shall be deemed to have been given as of one business day after sending thereof, those given by facsimile transmission with confirmation or receipt shall be deemed to have been given as of the date of transmission thereof (provided that such date is a business day in the country of receipt and if not, the next business day), and all notices and other communications sent by registered mail shall be deemed given three (3) days after posting. Notices sent by email shall be deemed received upon receipt of such email. 
9.8 Assignment. This Agreement may not be assigned, in whole or in part, by either Party without the prior express written consent of the other Party; except, however, that Company may, upon written notice, assign this Agreement in whole to: (A) an Affiliate; or (B) a successor in connection with a merger, consolidation, or acquisition of all or substantially all of Company’s assets or business relating to this Agreement. Any prohibited assignment will be null and void. Subject to the provisions of this Section (Assignment), this Agreement will bind and benefit each Party and its respective successors and assigns. At Company’s sole discretion, any Company obligation hereunder may be performed (in whole or in part), and any Company right or remedy may be exercised (in whole or in part), by any Affiliate of Company.