Referral Fee Teaming Agreement

This Quest Software, Inc. Referral Fee Teaming Agreement (the “Agreement”) dated <date>, 2010 (the “Agreement Date”) is made and entered into by and between Quest Software, Inc. (“Quest”) located at 5 Polaris Way, Aliso Viejo, California 92656 and <company name>, located at <company address> (“Partner”).

A. Partner desires to identify to Quest new business opportunities for the sale of a license to Quest’s software; and

B. Quest desires for Partner to identify such opportunities to Quest; and

C. Quest is willing to pay Partner a fee in accordance with this Agreement based on Quest’s sales resulting from such new business opportunity identification.

Now therefore, the parties hereby agree as follows:

1. Partner Obligations. Partner shall identify each opportunity for the sale of a license to Quest’s software hereunder (each, an “Opportunity”) by submitting to Quest an Opportunity Registration Form in the form attached hereto as Exhibit 1. Partner may use those Quest advertising and promotional materials provided by Quest hereunder in furtherance of its obligation to actively market and promote Quest and its products. Any use of Quest’s trademarks, service marks, or trade names is subject to Quest’s prior written approval.

Partner shall make no representations regarding Quest’s products except as consistent with Quest’s promotional and technical materials or as Quest may otherwise approve in writing.

Partner shall conduct business in a manner that reflects favorably at all times on the Quest products and Quest’s goodwill and reputation, and shall make no false or misleading representations with regard to Quest, its affiliates or its products.

2. Quest Obligations.  Quest shall supply Partner with such quantities of its advertising and promotional materials as it deems reasonably necessary for Partner’s performance hereunder.

Within a reasonable time after receipt of an Opportunity, Quest shall either accept or reject such in writing. An Opportunity may be rejected by Quest in its sole discretion for any reason including but not limited to Quest having a prior relationship with the prospect or the Opportunity duplicates existing sales efforts or information. 

If Quest directly licenses the Product to a customer within ninety (90) days of accepting the corresponding Opportunity (or any extension thereof agreed to by the parties in writing or by email), Quest shall pay Partner the percentage of the net license fees paid to Quest by the customer for such Product as determined by the role played by the Partner in the sales process as indicated in the Opportunity Registration Form (the “Referral Fee”). In the event that multiple Partners are involved in closing an Opportunity then Quest will, in its sole discretion, determine the allocation of the Referral Fee among the Partners. Unless otherwise agreed to by Quest in writing, in no event will the total Referral Fee exceed the lesser of ten percent (10%) of the net license fee paid or $100,000.00 per Opportunity. If the “prospect company” chooses to make its purchase through an authorized Quest reseller or distributor rather than directly from Quest, Quest shall be entitled to reduce the Referral Fee. However, Quest will confer with Partner in good faith to determine a reasonable reduction and Quest many not reduce the Referral Fee by more than fifty percent (50%) of the Referral Fee stated in the applicable Opportunity Registration Form. Payment shall be made to Partner within forty-five (45) days of Quest’s receipt of the corresponding fees from the customer. 

3. Relationship of the Parties. Partner shall conduct its business for its own account, in its own name, and not as an agent, employee, or partner of Quest. Neither party will represent that it has any authority to assume or create any obligation on behalf of the other party, or to represent that the other party is a partner, agent, employee, involved in a joint venture with it, or that the other party is involved with it in any capacity except as expressly set forth in this Agreement. Each party shall be responsible for all expenses incurred by it in the course of exercising any right or complying with any responsibility under this Agreement. Partner shall remain responsible, and shall indemnify and hold harmless Quest for the withholding and payment of all federal, state and local personal income, wage, earnings, occupation, social security, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements (under ERISA, state law or otherwise) now existing or hereafter enacted and attributable to Partner and its respective employees, as such may become payable as a result of this Agreement.

4. Confidential Information. Confidential Information means the Agreement, pricing, customer information, Opportunities, Opportunity Registration Form, trade secrets, know-how, any proprietary tools, proprietary knowledge or proprietary methodologies disclosed by Quest and not generally available to the public. Partner shall observe complete confidentiality with respect to the Confidential Information, and shall use commercially reasonable efforts and take all reasonable steps to protect the Confidential Information from any use, reproduction, publication, discloser, or distribution except as specifically authorized by this Agreement. Partner shall promptly notify Quest of any known unauthorized use or disclosure of the Confidential Information and will cooperate with Quest in any litigation brought by Quest against third party to protect its proprietary rights. “Confidential Information” means the Agreement, pricing, customer information. The provisions of this section shall survive termination for any reason whatsoever.

5. Restrictions. Quest reserves any rights, implied or otherwise, which are not expressly granted to Partner hereunder and retains all rights, title and interest in and to the Products. This Agreement gives Partner no right to use Products in any manner.

6. Term and Termination. This Agreement shall be effective until terminated by either party as provided for herein. Either party may terminate the Agreement for convenience upon thirty (30) days written notice or for breach by the other party upon five (5) days notice.

7. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER HEREUNDER FOR ANY LOST PROFITS OR FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. QUEST’S CUMULATIVE LIABILITY, IF ANY, FOR DAMAGES, INCLUDING (BUT NOT LIMITED TO) LIABILITY ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT, WARRANTY, PATENT OR COPYRIGHT INFRINGEMENT SHALL NOT EXCEED THE AMOUNT OF OPPORTUNITY FEES PAID TO CONSULTANT UNDER THIS AGREEMENT, AND IF SUCH DAMAGES RELATE TO A PARTICULAR OPPORTUNITY, SUCH LIABILITY SHALL BE LIMITED TO THE FEES PAID FOR SUCH OPPORTUNITY.

8. General. This Agreement and Exhibit 1 attached hereto constitutes the entire agreement of the parties on the subject matter herein and supercedes all previous communications, representations, understandings or agreements with respect to such subject matter. This Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflict of laws principles. Any action seeking enforcement of this Agreement or any provision hereof shall be brought exclusively in the state or federal courts located in the County of Orange, State of California, United States of America. Each party hereby agrees to submit to the jurisdiction of such courts.