Strategic Technologies, Inc.®
dba Consonus Technologies
THIS REFERRAL AGREEMENT (“Agreement”) is made and entered into this day, by and between
Strategic Technologies, Inc. dba Consonus Technologies, (“Consonus”) a North Carolina corporation,
having its principal place of business at 301 Gregson Drive, Cary, North Carolina 27511 (“Consonus”),
and the party agreeing to this Agreement, as indicated, (“Referring Party”). Consonus and Referring
Party are collectively referred to as the “Parties.”
WHEREAS, Consonus is in the business of providing Data Center and managed services (the
“Service” or “Services”);
WHEREAS, Referring Party desires to refer and forward potential subscribers and users of the
WHEREAS, Consonus desires to authorize Referring Party to refer and forward to Consonus
potential subscribers and users 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
1. Independent Contractor.
1.1. Referring Party is authorized to forward and refer to Consonus potential subscribers and
customers of the Services.
1.2. Referring Party is an independent contractor. Referring Party has no express or implied
authority to bind Consonus to any contract, representation, understanding, act or deed
concerning Consonus, the Services, or any other service or product offered by Consonus.
Referring Party shall make no representations or warranties concerning the Services or
Referring Party’s agency relationship with Consonus, unless such warranty or representation is
authorized in writing by Consonus. In addition, Referring Party shall not make any
representations nor warranties concerning prices, terms or delivery, performance of the
Services, terms of payment, or conditions of sales except to the extent such representations
are authorized in writing by Consonus.
1.3. Unless otherwise agreed to in writing by Consonus, appointment of Referring Party is not
exclusive, and Consonus may appoint other referring parties and sales representatives for the
Services within any territory, including areas where Referring Party does business.
1.4. Neither this Agreement nor any other related agreement makes either of the Parties an agent
of each other, and does not create a partnership, joint venture or any relationship other than
that of independent contractors, nor shall this Agreement give either Party the power to
obligate or bind the other in any manner whatsoever.
1.5. It is expressly agreed that Referring Party is not an employee of Consonus for any purpose
whatsoever, but is an independent contractor. Referring Party shall have sole control of the
manner and means of performing subject to Section 3.4 of this Agreement. Except as set forth
herein, Consonus shall not have the right to require Referring Party to collect accounts, devote
any fixed or minimum number of hours for selling efforts, make adjustments, bind Consonus,
follow up on any lead, or do anything else which would jeopardize the relationship of the
independent contractor between Consonus and Referring Party.
1.6. All expenses and disbursements, including, but not limited to, those for travel and
maintenance, entertainment, office, clerical, and general expenses that may be incurred by
Referring Party in connection with the referral services rendered pursuant to this Agreement
shall be borne wholly and completely by Referring Party, and Consonus shall not be in any way
responsible or liable therefor.
2. Duties and Performance of Referring Party.
2.1. Throughout the term of this Agreement, Referring Agent shall use reasonable efforts to endorse
and promote Consonus and its services, as well as to refer and forward potential customers
(including, but not limited to, business acquaintances, customers, clients, and associates) for
the Services to Consonus. Referring Party shall adhere to and comply with Consonus’ prevailing
practices and procedures that relate to the referral of customers for the use of the Services.
2.2. Subject to and in addition to the conditions of Section Three herein, Referring Party shall be
entitled to compensation hereunder only for those customers with whom Referring Party has
had direct personal contact and to whom Referring Party has directly endorsed and
recommended the Services.
2.3. Throughout the term of this Agreement, Referring Party agrees not to refer potential customers
to any person or entity other than Consonus that offers products and services that are in
competition with those offered by Consonus.
3.1. Consonus shall pay Referring Party a one-time commission (the “Commission”), payable in two
(2) parts, on the initial sale made to a customer that Referring Party refers to Consonus
pursuant to the terms of this Agreement (a “Referred Customer”). The Commission shall be
based on the first full (versus a partial first month) month’s recurring revenue received by
Consonus from the Referred Customer (“Revenue”). The commissionable revenue shall
commence on the date the Referred Customer signs a Customer Service Order (“CSO”), with
the Commission percentage as set forth in Paragraph 3.1.1.
3.1.1. The Commission paid, payable in two (2) parts, on a CSO signed within 120 days of
submitted referral, unless an authorized extension has been provided, shall be as
indicated in the attached Schedule or Exhibit for the first month’s revenue.
3.1.2. The total commission amount owed to Referring Party hereunder shall be payable thirty
(30) days after Consonus receives payment from the Referred Customer for the first full
month’s recurring revenue amount.
3.1.3. Referring Party agrees that in the event the Referred Customer becomes insolvent or
terminates their Agreement for convenience within the first full three (3) months of
service commencement, Consonus shall be entitled to a full and complete refund of the
Commission paid to the Referring Party.
3.2. Consonus shall be obligated to pay the Commission to Referring Party for a specific Referred
Customer if, and only if, the following conditions are satisfied:
3.2.1. The Referred Customer is not a current customer of Consonus or a customer who
Consonus has not, prior to the date of the referral, contacted and towards whom
Consonus has not, prior to Referring Party’s initial contact, already initiated sales and
marketing efforts; and
3.2.2. The Service or Services ordered by Referred Customer have been installed, activated,
and accepted by the Referred Customer.
3.3. In the event that the Referred Customer was referred to Consonus from more than one
authorized Consonus referral agent, Consonus will pay the Commission to the referring party
who, in Consonus’ sole determination, provided the most proximate, or recent, referral
relative to the date the Referred Customer initiates the Service with Consonus.
3.4. Referring Party is not authorized to conduct any advertising, solicitation or other marketing on
behalf of Consonus, and is to limit its contact to one-on-one conversations with agents of
potential customers. Absent the advance written notice from Consonus stating otherwise,
Consonus will be obligated to pay the Commission to Referring Party only if Referring Party
makes direct contacts with the Referred Customer. Commissions are not owing if a Referred
Customer is referred through mass mailings and other forms of mass solicitations to potential
customers of the Service.
4. Confidentiality and Customer Ownership.
4.1. All documents, data formation and other materials made available to Referring Party in
connection with this Agreement, including without limitation, all information regarding
services, Consonus customers (including those customers and potential customers referred to
Consonus by Referring Party), marketing data, business plans, and technical information
(collectively “Confidential Information”) shall be deemed to have been furnished to Referring
Party in confidence, subject to a non-disclosure agreement, and shall remain the exclusive
property of Consonus both during the term of this Agreement and after this Agreement is
terminated or expired. Referring Party shall treat as trade secrets and keep in strict confidence
all Confidential Information it acquires from Consonus at any time or develops for or on behalf
of Consonus, and Referring Party 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 such Confidential Information to any person or
entity without a written consent from Consonus.
4.2. Consonus shall retain full ownership of all information forwarded to Consonus regarding
Referred Customers by Referring Party under this Agreement.
5. Intellectual Property.
5.1. Referring Party agrees that Consonus retains ownership rights in and to certain intellectual
property, including without limitation any Consonus trademark, service mark, trade dress,
advertising, any associated goodwill, software or service, whether presently existing or later
developed (collectively “Intellectual Property”). Referring Party agrees to sign any document
as reasonably required to effect recording or protection of any such property.
6. Term and Termination.
6.1. The term of this Agreement will be for a period of one (1) year, commencing on the date
stated above. 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’ advance written
notice of such termination.
6.2. Consonus shall not be liable for any Commissions to Referring Party under this Agreement for
customers referred to Consonus after the effective termination date of this Agreement.
6.3. The provisions of Sections 3.3, 4.1, 4.2, 5.1, and 7 shall survive termination of this Agreement.
7.1. Unless Consonus notifies Referring Party otherwise in writing, Consonus disclaims all warranties
with regard to services rendered under this Agreement, including all implied warranties of
merchantability and fitness for a particular purpose. Referring Party shall extend no warranties
or guarantees without the pre-approval of Consonus, orally or in writing, in the name of
Consonus or which would bind Consonus with respect to the performance, design, quality,
merchantability, or fitness for a particular purpose of the Service. Neither Consonus nor its
affiliates, subsidiaries, suppliers, or parent corporations shall be liable to Referring Party 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. Consonus shall
not be liable to Referring Party, hereunder, for amounts representing loss of profits, loss of
business, or indirect, consequential, or punitive damages of the other party in connection with
the provision or use of the Information hereunder. Consonus’ 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 Referring Party.
7.2. Neither party shall be liable for, and 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, ice storms,
natural disaster or labor dispute. No failure of either party to pursue any remedy resulting from
a breach in 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 signed and in writing.
7.3. In the event 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.
7.4. This Agreement shall not be assigned by Referring Party, in whole or in part, and any attempt
to do so will result in immediate termination of the Agreement.
7.5. This Agreement shall be construed in accordance with the laws of the state of Delaware, and
shall be treated as a Delaware contract.
7.6. Both parties agree, for a period of two (2) years following termination of this Agreement, not
to solicit any of the employees or representatives of the other for purposes of employment;
provided, however, the parties shall not be (i) restricted from engaging in any general
solicitation for employees or public advertisement for employment opportunities not
specifically targeted at such persons, (ii) precluded from hiring any such person who responds
to any such general solicitation for employees or public advertisement for employment, or (iii)
precluded from hiring any such person who contacts such party on his or her own initiative
without any direct or indirect solicitation from such party, other than any solicitation pursuant
to a general solicitation or public advertisement.
7.7. Upon the mutual execution of this Agreement by both parties, and if available, the referring
party agrees to register the end-users name (“Deal Registration”) promptly, via the attached
form, and to provide the party attempting to do the sale/service/work with complete contact
information for the End User customer.
7.8. No amendment or modification of this Agreement shall be valid or binding on the parties unless
made in writing and executed on behalf of each party by its duly authorized representative.
7.9. All notices required under this Agreement shall be directed to the addresses indicated below,
and such addresses shall be deemed to be the most recent address of the addressee and shall
remain so until written notice of a change of address is provided to the other party by the
party whose address has changed:
If to Consonus: If to Referring Party:
301 Gregson Drive The address used shall be that which has been
entered on this Web page
Cary, North Carolina 27511
Attn: Manager of Contracts