Updated September 14, 2022

IT Managed Service Provider Anvil Referral Partner Agreement

This Referral Partner Agreement (“Agreement”) is made and entered into on ___________________________ , by and between Omnistruct, Inc (hereafter referenced as “Omnistruct”), a California Corporation having its principal place of business at 2740 Fulton Avenue #101-02, Sacramento, CA 95821, and _________________________        __               (“Referral Partner”), a  _____________________________________ having its principal place of business at                                                                                   .

WHEREAS, OMNISTRUCT is engaged in the business of providing cyber risk governance subscriptions, Software as a Service, and information security program readiness assessment, rollout, and maintenance;

WHEREAS, Referral Partner desires to become an Anvil Referral Partner and refer to OMNISTRUCT potential customers of the Services; and

WHEREAS, OMNISTRUCT desires to authorize and appoint Referral Partner to refer to OMNISTRUCT potential customers of the Services subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual promises made herein, the parties agree as follows:

1.  Referral Partner.

1.1.    OMNISTRUCT appoints Referral Partner as a non-exclusive authorized Anvil referral partner for purposes of forwarding to OMNISTRUCT potential customers for the Services.

1.2.    Referral Partner has no authority to negotiate any Contract for or on behalf of OMNISTRUCT or to bind OMNISTRUCT to any contract, representation, or understanding concerning OMNISTRUCT, the Services, or any other service or product offered by OMNISTRUCT that is outside the scope of this Agreement.  Referral Partner shall make no representations or warranties concerning the Services or Referral Partner’s relationship with OMNISTRUCT.  In addition, Referral Partner shall not make any representations or warranties concerning prices, terms of delivery, performance of the Services, terms of payment, or conditions of sales for the Services.

1.3.    Unless agreed to otherwise in writing by OMNISTRUCT, this appointment as Referral Partner is not exclusive, and OMNISTRUCT may appoint other referral partners and sales representatives for the Services within any territory that Referral Partner does business.

1.4.    OMNISTRUCT is appointing Referral Partner as an independent contractor.  The parties acknowledge that this appointment shall not establish a principal agent relationship or create a joint venture, franchise, or partnership at law between them.  Referral Partner hereby waives the benefit of any state or federal laws or regulations dealing with the establishment and regulation of franchises.  Referral Partner agrees that it shall inform its customers that Referral Partner is a business that is independent from OMNISTRUCT and shall not hold itself out as an agent of OMNISTRUCT or attempt to bind OMNISTRUCT to any third party agreement.

2.  Duties, Procedures, and Performance of Referral Partner.

2.1.    Throughout the term of this Agreement, Referral Partner shall use reasonable efforts to endorse and promote OMNISTRUCT and the Services and to refer and forward potential customers (including, but not limited to, business acquaintances, customers, clients, and associates) for the Services to OMNISTRUCT, to reach a monthly recurring net-new revenue target of $3000 of net-new Contracted Referred Customers on an annual basis with annual target measured from the effective date of this Agreement to the annual anniversary date of this Agreement (“Measurable Period”). Referral Partner shall adhere to and comply with any practices and procedures provided by OMNISTRUCT to Referral Partner that relate to the referral of customers for the use of the Services, including those procedures set forth in OMNISTRUCT’s Anvil Referral Partner Program documentation.

2.2.    Throughout the term of this Agreement, Referral Partner agrees to refer to OMNISTRUCT, at its discretion, one or more potential opportunities to sell OMNISTRUCT subscription services to a prospective end-user account (“Customer”) of Referral Partner using the online referral form link created for partner, or a mutually agreed upon means of referral exchange, identified hereafter as an “Opportunity” subject to review and approval by OMNISTRUCT.

2.3.    Throughout the term of this Agreement, Referral Partner agrees to conduct referrals legally, in good faith, and without collusion and acknowledges that all related rights, technical data and information are subject to controls imposed by the U.S. Government and other countries and will comply with all of those controls and all other applicable laws, regulations, codes and ordinances.

3.  Remuneration.

3.1.    OMNISTRUCT shall pay Referral Partner a commission (the “Commission” or “Commissions”) in arrears of customer Payment (or “as Earned”) for won Opportunity, as described in Exhibit 1 hereto, for each customer transacted referred and Contracted monthly residual Opportunity pursuant to the terms of this Agreement (a “Referred Customer”).  Exhibit 1 may be modified from time to time by OMNISTRUCT upon thirty (30) days’ notice to Referral Partner. Commissions will be paid to Referral Partner and not to individual employees of Referral Partner.  The total commission amount owed to Referral Partner hereunder shall be payable thirty (30) calendar days following OMNISTRUCT’s commencement of delivery of Services to the Referred Customer and upon receipt of payment in full of all deposits, setup fees, and first month of residual service Contracted by Referred Customer.

3.2.    OMNISTRUCT shall be obligated to pay the Commission to Referral Partner for a specific Referred Customer if, and only if, the conditions of Section 3.4 and the following conditions are satisfied:

3.2.1.    The Referred Customer is not a current customer of record of OMNISTRUCT or a customer who OMNISTRUCT has, prior to the date of the referral, identified as an Opportunity, or towards whom OMNISTRUCT, or another referral partner or authorized solutions partner of OMNISTRUCT, has been previously qualified as an Opportunity; and

3.2.2.    The Services ordered by Referred Customer have been installed, and activated by OMNISTRUCT, and accepted by the Referred Customer;

3.2.2.    The Services ordered by Referred Customer are residual with at least a one-year Contract term and active for a minimum of ninety (90) calendar days;

3.2.3.    The Referred Customer is an Omnistruct Contracted customer in good standing directly Contracted with Omnistruct.

3.3.    Referral Partner’s entitlement to retain any Commissions paid hereunder for each Referred Customer is conditioned upon such Referred Customer’s continued subscription to and payment for the Services for a period of no less than ninety (90) calendar days (the “Minimum Service Period”).  ‌

3.4.    In the event that the Referred Customer was referred to OMNISTRUCT by more than one OMNISTRUCT referral partner, then OMNISTRUCT will pay the Commission to the Referral Partner who provided the first referral relative to the Referred Customer through the Anvil Channel Program deal registration webform created for Referral Partner.  However, OMNISTRUCT may, in its sole discretion, determine to share, through division of Commissions calculated at OMNISTRUCT’s sole discretion, of the Commission between multiple referral partners in situations deemed appropriate at OMNISTRUCT’s sole discretion.‌

3.4.1.    Commissions will only be paid for Referred Customers referred by Referral Partner to Omnistruct and with whom Referral Partner has had direct personal contact within ninety (90ea) calendar days of Referred Customer’s Contract effective data, and to whom Referral Partner has directly endorsed and recommended the Services.

3.4.2.    OMNISTRUCT will not be obligated to pay the Commission to Referral Partner if Referral Partner uses mass mailings and other forms of mass marketing automation technologies as proof of contact with Referred Customer, generally identified commercially as Marketing Qualified Leads (“MQL”), in mass broadcast solicitations through automation as unsolicited (ie: “SPAM”) for consideration of OMNISTRUCT subscription Services.

3.4.3.    Applicable territorial rights for Referral Partner of any Prospective Client of Referral Partner referred by Omnistruct to Referral Partner will be outline in Exhibit 1.

3.4.4.    The remuneration structure in this Section 3 is agreed to be the sole compensation and remuneration to Referral Partner for the performance of its services under this Agreement.

4.  Confidentiality, Privacy, and Customer Ownership.

4.1.    All documents, data files, information and other materials made available to Referral Partner in connection with this Agreement, including without limitation all information regarding services, OMNISTRUCT customers (including those customers and potential customers referred to OMNISTRUCT by Referral Partner), marketing data, business plans, and technical information and information relating to OMNISTRUCT’s business developed by Referral Partner during the term of this Agreement (collectively “Confidential Information”) shall be deemed to have been furnished to Referral Partner in confidence and shall remain the exclusive property of OMNISTRUCT during and after the term of this Agreement.  Referral Partner shall treat as trade secrets and keep in strict confidence all Confidential Information and Referral Partner will not at any time during the term of this Agreement or thereafter use such Confidential Information for its own benefit or disclose or permit any of its employees, agents, or representatives to disclose, through any medium, such Confidential Information to any other person or entity without prior written consent from OMNISTRUCT.

4.2    Referral Partner shall retain Partner of Record ownership of all Referred Customers that Referral Partner refers to OMNISTRUCT under this Agreement, including all information relating to such Referred Customers.

4.3.    Referral Partner will self-attest to any of the following cyber security frameworks: NIST.IR 7621r1, or equivalent NIST framework, with a one-time provisional no-cost audit by OMNISTRUCT.

4.4.    Referral Partner identified as a “covered entity” under the California Consumer Privacy Act of 2018 (“CCPA”), and its subsequent Amendments, will maintain their CCPA compliance accordingly effective January 1, 2020.

5.  Intellectual Property; Sales and Marketing Materials.

5.1.    Referral Partner acknowledges that OMNISTRUCT retain ownership rights in and to certain intellectual property of OMNISTRUCT, including without limitation any OMNISTRUCT. Trademark, service mark, trade dress or other designation, advertising material and any associated goodwill, whether presently existing or later developed by either OMNISTRUCT. (Collectively “Intellectual Property”).  Unless expressly stated otherwise in this Agreement, nothing contained herein shall give Referral Partner any rights to use any Intellectual Property in advertising, publicity or marketing materials.

5.2.    If approved in advance and in writing by OMNISTRUCT, Referral Partner may use advertising or marketing materials prepared by OMNISTRUCT for purposes of Referral Partner carrying out its obligations under this Agreement.  Referral Partner may use such advertising materials only upon the terms and conditions stated by OMNISTRUCT from time to time.  Referral Partner may not modify or delete any advertising materials which it is authorized to use without the prior written consent of OMNISTRUCT.

5.3.    Unless expressly authorized in Exhibit 1 of this Agreement, nothing contained in this Agreement shall be construed as conferring on Referral Partner any right to use any name, trademark or other designation of OMNISTRUCT. in advertising, publicity or marketing materials.  In the event that Referral Partner desires to produce its own printed sales and marketing materials referring to OMNISTRUCT’s Services and rates, using  OMNISTRUCT’s trademarks and/or tradename, and suggesting any relationship, whatsoever, between Referral Partner and OMNISTRUCT (except as otherwise authorized in this Agreement) (“Referral Partner Produced Materials”), Referral Partner shall submit the Referral Partner Produced Materials to and obtain advance written approval from an authorized representative of OMNISTRUCT prior to printing and the dissemination of any such Referral Partner Produced Materials to any third party.  OMNISTRUCT shall have sole discretion to approve or disapprove of all Referral Partner Produced Materials. OMNISTRUCT will require Referral Partner to enter into a trademark license as a condition of approving the Referral Partner Produced Materials. The Referral Partner must adhere to the OMNISTRUCT’s standards for the use of such trademarks or tradenames and use such trademarks and tradenames solely for the purpose of advertising and marketing OMNISTRUCT’s Services. As soon as practicable, upon termination of this Agreement, all Referral Partner Produced Materials in Referral Partner’s possession shall be delivered to OMNISTRUCT.

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6.  Term and Termination.

6.1.    The term of this Agreement will be for a period of one (1) calendar year, commencing on the date stated above and renewed at the sole discretion of OMNISTRUCT.  Unless either party provides written notice stating otherwise, the term of this Agreement shall be renewed for successive one-year terms.  At any time, either party may terminate this Agreement upon providing the other party thirty (30) days prior written notice.  OMNISTRUCT may, at its sole discretion, modify this agreement at any time with thirty days written notice. Moreover, OMNISTRUCT may terminate this Agreement immediately without notice in the following circumstances:

(i) breach of any covenant, term or condition of this Agreement by Referral Partner which breach continues unremedied for a period of ten (10) days after notice to Referral Partner of such breach;

(ii)  an assignment by Referral Partner for the benefit of creditors or Referral Partner becomes bankrupt or insolvent, or takes benefit of, or becomes subject to, any legislation in force relating to bankruptcy or insolvency, it being understood that the appointment of a receiver or trustee of the property and assets of the Referral Partner is conclusive evidence of insolvency; or

(iii) OMNISTRUCT is unable to provide the Service by reason of any law, rule, regulation, or order of any municipal, state or federal authority, including, but not limited to, any regulatory authority having jurisdiction

(iv) OMNISTRUCT

6.2.    OMNISTRUCT shall be responsible for paying any and all Commissions owed to Referral Partner under this Agreement only for those Referred Customers in good standing that are referred to OMNISTRUCT with an active Contract for (OMNI-MAINT* SKU) and met criteria for Commission as outlined in Exhibit 1 before the effective termination date of this Agreement.

6.3.    The provisions of Sections 1.2, 3.3, 4, 5.1, 5.3, 6.3 and 7 shall survive termination and/or nonrenewal of this Agreement or any part thereof.

7.  Miscellaneous.

   7.1.    UNLESS OMNISTRUCT NOTIFIES REFERRAL PARTNER OTHERWISE IN WRITING, OMNISTRUCT, INC DISCLAIMS ALL WARRANTIES WITH REGARD TO SERVICES RENDERED UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. REFERRAL PARTNER SHALL EXTEND NO WARRANTIES OR GUARANTEES IN THE NAME OF OMNISTRUCT OR WHICH WOULD BIND OMNISTRUCT WITH RESPECT TO THE PERFORMANCE,

DESIGN, QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES.  NEITHER OMNISTRUCT NOR ITS BRANCHES, SUBSIDIARIES, SUPPLIERS, OR PARENT CORPORATIONS SHALL BE LIABLE TO REFERRAL PARTNER OR ANY THIRD PARTY FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, TORT OR COVER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RESULTING FROM THE USE OR INABILITY TO USE THE SERVICES, DELAY OF DELIVERY AND IMPLEMENTATION, OR LOSS OF PROFITS, DATA, BUSINESS OR GOODWILL, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.  OMNISTRUCT’S LIABILITY FOR ALL CLAIMS OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL BE LIMITED SOLELY TO MONEY DAMAGES AND SHALL NOT EXCEED THE AMOUNT OF COMMISSIONS DUE TO REFERRAL PARTNER.

7.2.     Neither party shall have the right to recover damages or to indemnification of any nature, whether by way of lost profits, expenditures for promotion, payment for good will or otherwise made in connection with the business contemplated by this Agreement, due to the expiration or permitted or lawful termination of this Agreement.  EACH PARTY WAIVES AND RELEASES THE OTHER FROM ANY CLAIM TO COMPENSATION OR INDEMNITY FOR TERMINATION OF THE BUSINESS RELATIONSHIP UNLESS TERMINATION IS IN MATERIAL BREACH OF THIS AGREEMENT.

7.3.    Each party agrees to indemnify, defend, save and hold the other party harmless from and against all liabilities, damages, judgments, claims, costs and expenses, including, but not limited to, reasonable attorneys’ fees incurred by the other Party, as a result of or arising out of any breach of obligation, warranty or representation in this Agreement by the other Party.

7.4.     Neither party shall be liable for, and each party is excused from, any failure to perform or delay in the performance of its obligations under this Agreement due to causes beyond its control, including without limitation, interruptions of power or telecommunications services, failure of its suppliers or subcontractors, acts of nature, governmental actions, fire, flood, natural disaster, or labor disputes.  No failure of either party to pursue any remedy resulting from a breach of this Agreement by the other party shall be construed as a waiver of that breach, nor as a waiver of any subsequent or other breach unless such waiver is in signed and in writing.

7.5.    In the event that any provision of this Agreement shall be invalid, illegal or unenforceable in any respect, such a provision shall be considered separate and severable from the remaining provisions of this Agreement, and the validity, legality or enforceability of any of the remaining provisions of this Agreement shall not be affected or impaired by such provision in any way.

7.6.    This Agreement shall not be assigned by Referral Partner, in whole or in part, without the express written consent of OMNISTRUCT.  This Agreement may be assigned by OMNISTRUCT without consent of the Referral Partner.

7.7.    This Agreement shall be construed in accordance with the laws of the State of California regardless of California’s choice of laws provisions.

7.8.    All exhibits to this Agreement shall be incorporated in and constitute parts of this Agreement.  This Agreement and the Exhibits hereto, each as amended from time to time, constitute the entire understanding between the parties in relation to the subject matter hereof and supersede all prior discussions, agreements and representations, whether oral or written and whether or not executed by OMNISTRUCT or Referral Partner.  Unless otherwise provided in this Agreement, no modification, amendment or other change may be made to this Agreement or any part thereof unless reduced to writing and executed by authorized representatives of both parties.  OMNISTRUCT may change any terms of the OMNISTRUCT Referral Partner Program without prior notice to Referral Partner; provided, however, that Referral Partner shall be permitted to terminate this agreement and its participation in the OMNISTRUCT Referral Partner Program, at its sole discretion, upon implementation of any such change by OMNISTRUCT.

7.9.    Notices required to be given by one party to another shall be deemed properly given only when reduced to writing and sent to the addresses stated herein by certified mail, return receipt requested, postage prepaid, by courier, or by facsimile and shall be effective upon delivery.  Either party may change the addresses for giving notice from time to time by written instructions to the other party of such change of address.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date stated above.

Omnistruct, Inc
2740 Fulton Ave. #101-02 Sacramento, CA 95821

Exhibit 1

Commission payments will be made as follows with commission amounts rounded to the nearest dollar.  Refer to your OMNISTRUCT representative for information on calculation of commissions. Referral Partner shall retain the rights to identify OMNISTRUCT and all OMNISTRUCT logos, branding, and marketing in Referral Partner’s advertising, marketing, and public relations in support of this Agreement.

All referral payments will be paid to Referral Partner at, or around, the end of each measured calendar quarter and in arrears of payments received by Contracted Referred Customer referred with an active Contract (OMNI-MAINT* SKU) and in good standing.

MSP Anvil Referral Program Option:

Iron – For up to the first twelve months of Referred Customer active service, OMNISTRUCT will pay Iron Referral Partner 10% commission of monthly residual revenue for new OMNISTRUCT cyber Governance/Compliance as a Service (GaaS) Business, or Enterprise, -Class subscription services (OMNI-MAINT* SKU) referred by Referral Partner and Contracted by OMNISTRUCT. At the conclusion of the first twelve months of Referred Customer active service, Referral Partners will be entitled to an ongoing residual revenues referral payment of 5% of the cyber GaaS Contracted value of Referred Customer(s) for up to one (1ea) additional Contract year after overall annual residual target of $10,000 net-new monthly GaaS residual revenue (OMNI-MAINT* SKU) referred is achieved and Contracted during the Anvil Referral Partner Measurable Period.

Steel – For up to the first twelve months of Referred Customer active service, OMNISTRUCT will pay Steel Referral Partner 15% commission of monthly residual revenue for new OMNISTRUCT cyber Governance/Compliance as a Service (GaaS) Business, or Enterprise, -Class subscription services (OMNI-MAINT* SKU) referred by Referral Partner and Contracted by OMNISTRUCT. At the conclusion of the first twelve months of Referred Customer active service, Referral Partners will be entitled to an ongoing residual revenues referral payment of 5% of the cyber GaaS Contracted value of Referred Customer(s) for up to two (2ea) additional Contract years starting after overall annual residual target of $20,000 net-new monthly GaaS residual revenue (OMNI-MAINT* SKU) referred is achieved and Contracted during the Anvil Referral Partner Measurable Period. An annual Steel program fee of $1000 will be payable by Referral Partner due at signing of the Anvil Agreement (the annual program fee will be waived for all Contracted “On MSP” IT Service Providers in Good Standing).

Titanium – For up to the first twelve months of Referred Customer active service, OMNISTRUCT will pay Titanium Referral Partner 20% commission of monthly residual revenue for new OMNISTRUCT cyber Governance/Compliance as a Service (GaaS) Business, or Enterprise, -Class subscription services (OMNI-MAINT* SKU) referred by Referral Partner and Contracted by OMNISTRUCT.  At the conclusion of the first twelve months of Referred Customer active service, Referral Partners will be entitled to ongoing residual revenues referral payment of 5% of the cyber GaaS Contracted value of Referred Customer(s) for up to three (3ea) additional Contract years starting when overall annual residual target of $30,000 net-new monthly GaaS residual revenue (OMNI-MAINT* SKU) referred is achieved and Contracted during the Anvil Referral Partner Measurable Period. An annual Titanium program fee of $3000 will be payable by Referral Partner due at signing of the Anvil Agreement (the annual program fee will be reduced to $1500 for all Contracted “On MSP” IT Service Providers in Good Standing).