PARTNER PROGRAM TERMS AND CONDITIONS

This agreement consists of these Partner Program Terms and Conditions (“Terms”), together with each Partner Engagement Form (“Engagement Form”) that Partner and Eyko sign that incorporates these Terms (collectively, the "Agreement"). The Agreement governs and sets out the terms and conditions pursuant to which Partner will participate in Eyko’s partnership program (the “Partner Program”) which allows for varying types of partners, as more particularly described in these Terms:

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ENGAGEMENT ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND YOUR AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.

1.    DEFINITIONS

“Eyko” means Eyko, Inc., unless otherwise expressly indicated in an Engagement Form.

“Eyko Branding Guidelines” means Eyko’s guidelines for use of the Eyko Marks and proprietary legends that Eyko may issue from time to time.

“Eyko Marks” means Eyko’s trade names, trademarks and logos associated with the Products.

“Partner” means the partner identified on the Engagement Form.

“Territory” means the industry, market, or geographical area indicated in the Engagement Form.

2. Lead Agents. If Partner is a lead agent, as indicated in an Engagement Form, the following terms and conditions apply:

2.1 Appointment. Eyko appoints Partner as a nonexclusive, independent representative for promoting the sale of the products and services listed in an Engagement Form (“Products”) to Qualified Prospects in the Territory. Partner’s relationship with Eyko under this Agreement is that of an independent contractor. Partner does not have, and will not represent that it has, any express or implied right or authority to bind Eyko to any contract, agreement, or undertaking with any third party.

2.2 Referral Process. Partner will notify Eyko of prospective customers by completing a registration form supplied by Eyko (the “Sales Referral Form”). Sales Referral Forms may be submitted by email. Upon receipt of such form, Eyko will determine whether the prospective customer (each, a “Prospect”) meets the following criteria: (i) Eyko has not had active discussions with the Prospect within the previous twelve months; (ii) no other sales agent, sales representative, value added reseller, original equipment manufacturer or other distributor of Eyko (collectively, “Dealer”) has an active registration of such Prospect with Eyko; and (iii) Eyko is not aware of any current discussions related to any Product by such Dealer. Eyko will endeavor to respond to the receipt of each Sales Referral Form within ten business days after receipt of a properly completed Sales Referral Form. Eyko will endeavor to notify Partner as to the reasons for any denial of Qualified Prospect status, subject to Eyko’s applicable confidentiality obligations. If Eyko does not respond to a Sales Referral Form within five business days of receipt thereof, then such Prospect will be deemed not to be a Qualified Prospect. Prospects approved in writing by the Sales Vice President of Eyko (the “Sales VP”) within five business days of its receipt of the Sales Referral Form are deemed “Qualified Prospects.”

2.3 Qualifying Commitment. In order to qualify for payment of the Fees specified in Section 5.1, a Qualified Prospect and Eyko must execute a valid and binding agreement, other than an agreement for a proof of concept, evaluation or trial period and related services, for one or more Products (a “Qualifying Commitment”), upon terms and conditions acceptable to Eyko in Eyko’s sole discretion, within twelve months following acceptance of the applicable Prospect as a Qualified Prospect. If the Qualified Prospect does not enter into a Qualifying Commitment within such twelve month period, then such person or entity will lose Qualified Prospect status, unless extended in writing by Eyko, and Partner will not seek to add such Prospect as a Qualified Prospect for six months after the Qualified Prospect designation expires.

2.4 Covenants. Partner represents, warrants and agrees that it will: (i) not make any false or misleading representations with regard to Eyko, its affiliates or Dealers, or the Products; (ii) not make any representations, warranties or guarantees to Qualified Prospects or to the trade with respect to the specifications, features, or capabilities of the Products that are inconsistent with the information provided by Eyko; (iii) conduct its business in a manner that reflects favorably at all times on the good name, goodwill, and reputation of Eyko; and (iv) does not and will not have a conflict of interest with respect to the receipt of revenue share compensation from Eyko with respect to each relevant transaction.

2.5 Trademark License. Subject to Partner’s compliance with the terms and conditions of this Agreement, Eyko grants to Partner a limited, non-exclusive, non-transferable, royalty-free license to use the Eyko Marks solely for marketing the Products in accordance with the Eyko Branding Guidelines. Eyko may from time to time attach other or additional Eyko Marks to the Products and Partner will distribute the Products with such different or additional marks. Partner agrees to state in appropriate places on all materials using the Eyko Marks that the Eyko Marks are trademarks of Eyko and to include the appropriate trademark symbols. Eyko grants no other rights than expressly granted hereunder, and Partner acknowledges Eyko’s exclusive ownership of the Eyko Marks. Partner agrees not to take any action inconsistent with such ownership. All uses of the Eyko Marks and enhancement of goodwill associated therewith shall inure to the benefit of Eyko. Partner shall not adopt, use or attempt to register any trademarks or trade names that are confusingly similar to the Eyko Marks or in such a way as to create combination marks with the Eyko Marks. Partner shall provide Eyko with samples of all materials that use the Eyko Marks prior to their public use or display for Eyko’s quality control purposes. Eyko may terminate, in whole or in part, Partner’s license to use the Eyko Marks if, in Eyko’s sole discretion, Partner’s use of the Eyko Marks does not meet the then-current Eyko Branding Guidelines. Partner will immediately bring to the attention of Eyko any improper or wrongful use of the Products, the Eyko Marks, or any other intellectual property rights of Eyko of which Partner becomes aware.

3. Sales Partners. If Partner is a sales partner, as indicated in an Engagement Form, the terms and conditions in Section 2 apply as well as the following additional terms and conditions:
3.1 Promotion. Partner will use best efforts to promote the Products to Qualified Prospects in the Territory and to encourage such Qualified Prospects to place orders for the Products with Eyko or its affiliates or authorized distributors. Partner will maintain adequate technical knowledge and training necessary to inform Qualified Prospects properly concerning the features and capabilities of the Products.

3.2 Sales Ownership. In order to qualify for the higher tier of fees payable to sales partners for a Qualifying Commitment, Partner must lead and be solely responsible for the sales and contracting process for such Qualified Prospect. Partner shall take all such steps as are reasonably necessary or desirable to effectuate a written, enforceable Qualifying Commitment with each Qualified Prospect, including but not limited to conducting Product demonstrations, providing information regarding Products including product literature, collateral and materials provided or made available by Eyko, organizing and leading meetings (remote or in person), answering and facilitating responses to questions, and obtaining the signatures of an authorized representative of both Eyko and the Qualified Prospect on Eyko’s then current standard sales agreement for the Product(s) (“Eyko Form”). Partner may not execute any agreement on Eyko’s behalf and will not make any changes or amendments to the Eyko Form without Eyko’s prior review and written consent in each instance and in Eyko’s sole discretion. If consent is given, such consent will only apply with respect to the changes or amendments made for that specific Qualifying Commitment and will not be deemed to be given for the same or similar changes or amendments in a future transaction, which each will require Eyko review and consent.

3.3 Points of Contact. Each party will designate a point of contact to serve as the account representative to the other party. Either party may change its account representative upon written notice to the other party. Partner shall also establish and maintain a trained staff of sales and support personnel reasonably necessary to carry out the obligations of Partner under this Agreement.

3.4 Competitive Services. Partner represents and warrants that it does not currently offer, represent or promote any software, product, service or offering that competes with one or more Products and agrees that, during the term of this Agreement, it will not directly or indirectly, whether through its affiliates or otherwise, offer or distribute any software, product, service or offering that imitates the functionality of or competes with one or more Products. Determination of whether any software, product, service or offering imitates the functionality of or is competitive with one or more Products shall be made by Eyko in its reasonable judgment.

3.5 Exclusivity. Despite the generally non-exclusive nature of this Agreement, Eyko may grant an initial period of exclusivity to the Partner for a Territory, along with the possibility of performance-based continued exclusivity, under the terms and conditions outlined in an Engagement Form. Partner’s eligibility to participate in Eyko’s partnership program is contingent on meeting annual revenue targets as outlined in an Engagement Form (“Target Revenue”). If Partner fails to meet the applicable Target Revenue set for any annual period following the Effective Date, without limiting any other right or remedy, Eyko may in its discretion (but is not obligated to) do one or more of the following: (i) downgrade Partner’s exclusive appointment to a non-exclusive appointment; (ii) suspend acceptance of new registrations under Section 2, either in part or in whole; or (iii) suspend or terminate these Terms or Partner’s participation in the partnership program on written notice to Partner.

4. Managed Services Partner. If Partner is a managed service partner, as indicated in an Engagement Form, the terms and conditions in Section 2 and Section 3 apply as well as the following additional terms and conditions:

4.1 Certification. Partner shall attend, actively participate in and complete Eyko’s then current training and certification program to act as a managed service program for each Product (the “Certification Program”). On request, Eyko can provide additional details of its then current Certification Program, which may vary in number of sessions, length of sessions, any required continuing or post-certification sessions, and other details that could change by Product or over time. On the completion of the Certification Program to Eyko’s satisfaction, Eyko will issue a written certification to Partner on a Product-by-Product basis.

4.2 Sales Rights. Upon receipt of the written certification for a Product following satisfactory completion of the applicable Certification Program, Partner shall be given non-exclusive access to the applicable Product to allow Partner to (a) author, create, invent, and build additional applications, reports or dashboards within the Product for further distribution and licensure to Qualified Prospect as part of a Product (collectively, “Add-On Developments”); and (b) provide implementation, managed services and other consulting or professional services to a Qualified Prospect (such services in (a) and (b), the “Partner Services”). While Qualifying Commitments will remain between Eyko and the applicable Qualified Prospect as described in Section 2.1, Partner will be entitled to enter into agreements directly with a Qualified Prospect who has executed a Qualifying Commitment for Covered Services and retain any amounts paid to Partner for such Covered Services. Alternatively, Eyko may contract for Covered Services with such Qualified Prospect and subcontract such services to Partner via a separate agreement.

4.3 Use of Products. Partner’s use of the Products will be subject to the then current terms and conditions for such Product as published or made available Eyko, which currently may be found at https://www.eyko.io/legal.

5. Partner Compensation

5.1 Referrals. Eyko will pay to Partner a percentage of Net Sales for each Qualifying Commitment where it complied with its obligations as a lead agent or sales partner, as the case may be, and as such percentages are more specifically set forth in an Engagement Form (“Fees”). For the purposes of this Agreement, “Net Sales” is defined as all subscription fees actually received by Eyko and that with the passage of time can be recognized as revenue from a Qualifying Commitment, less any applicable discounts, allowances, sales and use taxes, customs duties and consular fees, handling charges, international jurisdiction related taxes or fees, and shipping charges billed to Qualifying Commitments. To the extent separately charged from subscription fees, fees charged by Eyko for implementation, support or maintenance, hosting, consulting, integration, training, customization, or other services are not included in the definition of Net Sales.

5.2 Payment Terms. Eyko will render payment to Partner of all Fees owed to Partner, along with a statement setting forth the basis for such payment within 30 days of first receipt of applicable Net Sales. Except as specifically set forth in Section 5.1, no fees or other sums will be payable to Partner in connection with any Prospect, Qualified Prospect, or Qualifying Commitment.

5.3 Records. Each party will maintain relevant records with respect to any Fees payable in accordance with this Agreement. Each party will maintain business and financial records that contain information sufficient to verify the completeness and accuracy of all Fees for a period of at least one calendar year after each calendar quarter to which such Fee or report relates.

6. Confidential Information.

6.1 Generally. Partner acknowledges that, in the course of performing its obligations under this Agreement, Eyko may provide to Partner certain information relating to Eyko or third parties that that is of value to its owner and is treated as confidential (“Confidential Information”), including information of Prospects and Qualified Prospects. Partner will use Confidential Information only in connection with performing its obligations under this Agreement, and will not otherwise use or disclose the Confidential Information. Each party may disclose such Confidential Information to its employees who have a bona fide need to know and who have executed a written agreement restricting use and disclosure of the Confidential Information to no less an extent as that required under this Agreement. The obligations contained in this Section will not apply to the extent any information: (i) is or becomes public knowledge without the fault or action of Partner; (ii) is rightfully known by Partner at the time of disclosure without an obligation of confidentiality; or (iii) is rightfully retained by Referred from a third party without restriction on use or disclosure. The obligations contained in this Section will not apply to any Confidential Information that is required to be disclosed pursuant to the order or requirement of a court, administrative agency or other governmental body, provided that, if allowed by law, Partner gives reasonable notice to Eyko so that Eyko may contest such an order or requirement or that is required to be disclosed under applicable securities regulations. Additionally, due to Partner’s access to the Confidential Information resulting from this Agreement, and in order to avoid any conflict of interest or unlawful use of the Confidential Information, during the term of the Agreement, Partner agrees not to offer for sell or sell, market, develop, create, or assist any other person or entity in the development or creation of any products or services that perform substantially the same business functions as the Products.

6.2 Feedback. To the extent Partner provides any suggestions, requests, ideas or other feedback regarding the Products or its related performance, operation or functionality (collectively, “Feedback”), Eyko may freely use the Feedback without any duty of confidentiality or any obligation or restriction of any kind.

6.3 Equitable Relief. Partner acknowledges that the unauthorized use or disclosure of the Confidential Information would cause Eyko immediate irreparable harm and significant damages, the amount of which may be difficult to ascertain. Accordingly, Eyko will have the right to seek to obtain immediate equitable relief to enjoin any unauthorized use or disclosure of its Confidential Information, without the requirement of posting any bond, in addition to any other rights and remedies that it may have at law or otherwise.

7. Term and Termination.

7.1 Term. This Agreement is effective for so long as Partner is participating in the Partner Program as evidenced by a signed, active Engagement Form.

7.2 Termination. This Agreement may be terminated at any time by either party in the event of any breach by the other party that continues unremedied for a period of ten days following written notice thereof. Eyko may terminate this Agreement for any or no reason upon 30 days prior written notice to Partner. Any decision by Eyko to terminate the Partner Program will constitute an exercise of Eyko’s right to terminate this Agreement. Additionally, if either party: (i) files a petition for bankruptcy; (ii) is adjudicated bankrupt by any court; (iii) makes an assignment for the benefit of creditors; (iv) takes the benefit of any bankruptcy or insolvency act; or (v) generally becomes unable to pay its debts when due, this Agreement may be terminated by the other party upon notice to such party.

7.3 Effect of Termination. Upon the termination or expiration of this Agreement, Partner will immediately return to Eyko, or securely delete at Eyko’s option, all copies of all Confidential Information in its possession or control.

7.4 No Expectation of Continuing Relationship. Neither party will be liable to the other for any compensation, reimbursement, costs, or damages, including the loss of prospective profits, investments, inventory, and the like, as a result of expiration of or terminating this Agreement in accordance with its terms. If the foregoing is found to be unlawful, in no event will either party be liable to the other for more than $10,000 in connection with termination occurring in accordance with the terms of this Agreement. Termination shall not, however, relieve either party of any obligations incurred prior to the termination. Partner has no expectation and has received no assurances that its business relationship with Eyko will continue for any specified time beyond the Term, that any investment in promotion of the Products will be recovered or recouped, or that it will receive any anticipated amount of profits by virtue of this Agreement.

7.5 Survival. Sections 6, 7.3, 7.4, 7.5, 8, 9, 10, and 11 of this Agreement (and any corresponding rights or obligations of either party or both parties thereunder) will survive any termination or expiration of this Agreement.

8. Indemnification. Partner agrees to indemnify, defend and hold harmless Eyko from and against all damages, costs, losses, and liabilities arising out of third party claims and related to the breach of the representations, warranties and covenants contained in this Agreement or any other act or omission of Partner.

9. Limitation of Liability; Disclaimer.

9.1 Disclaimer. ANY PRODUCTS, DOCUMENTATION, BUSINESS MODELS OR OTHER MATERIALS ARE PROVIDED BY EYKO “AS IS” AND WITHOUT ANY WARRANTY, WHATSOEVER, INCLUDING, WITHOUT LIMITATION, AS TO PERFORMANCE, ACCURACY, OR FREEDOM FROM ERROR. EYKO MAKES NO EXPRESS OR IMPLIED WARRANTIES, CONDITIONS, OR REPRESENTATIONS TO PARTNER WITH RESPECT TO THE PRODUCTS, ANY SERVICES PROVIDED HEREUNDER OR OTHERWISE REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, ANY IMPLIED WARRANTY OF MERCHANTABILITY, IMPLIED WARRANTY AGAINST INFRINGEMENT, AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED AND DISCLAIMED.

9.2 Limitation of Liability. EYKO WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES INCURRED BY PARTNER, INCLUDING LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR GOODWILL, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL ANY LIABILITY OF EYKO ARISING HEREUNDER EXCEED THE AMOUNTS PAID BY EYKO TO PARTNER DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

10. Changes to the Program. Partner understands and agrees that Eyko may update, amend or change the Partner Program and/or these Terms in its sole discretion from time to time. Updated Terms will be posted online or communicated to Partner.

11. General
Partner shall be responsible for all acts or omissions of its subcontractors. Partner shall indemnify and hold Eyko harmless from and against any liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) resulting from any such acts or omissions of any such subcontractor. Eyko may, at any time, update, upgrade, or modify the Products, or add or remove Products from an Engagement Form in its sole discretion. Partner may not assign or transfer this Agreement, in whole or in part, whether by change of control, operation of law, or otherwise, without Eyko’s prior written consent. Any attempted assignment or transfer, without such consent, will be null and void. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the parties’ successors and permitted assigns. Except as expressly provided herein, nothing in this Agreement transfers, licenses or assigns any intellectual property rights. All such rights are reserved, and no rights are granted by implication. In all matters relating to this Agreement, neither Partner nor its employees or agents are or will act as employees of Eyko within the meaning or application of any international, federal or state unemployment insurance laws, old age benefit laws, social security laws, workers’ compensation or industrial accident laws, or under any other laws or regulations that may impute any obligations or liability to Eyko by reason of an employment relationship. The waiver by either party of any default by the other party will not waive subsequent defaults by the other party of the same or a different kind. In the event any provision of this Agreement is held to be unenforceable, the other provisions of this Agreement will remain in full force and effect. This Agreement, including its Exhibits (which are incorporated herein by this reference), constitutes the entire and exclusive agreement between the parties pertaining to the subject matter hereof, and supersedes any and all written or oral agreements previously existing between the parties with respect to such subject matter. Any modifications of this Agreement must be in writing and signed by both parties hereto. Any notices required or permitted under this Agreement will be in writing and will be effective upon delivery to the receiving party’s address listed above, or such other address as specified by the party by written notice. For purposes of this Agreement, (a) the words "include," "includes," and "including" are deemed to be followed by the words "without limitation;" (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto," and "hereunder" refer to this Agreement as a whole. This Agreement may be executed in counterparts (including by facsimile), each of which will be considered an original. This Agreement and all matters relating to this Agreement will be governed by the laws of the State of Delaware, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in New Castle County, Delaware. Eyko and Partner hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding. Notwithstanding the foregoing, any actions for an injunction or other equitable relief may be brought in any jurisdiction and venue where personal jurisdiction is available.