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This Mutual Referral Agreement (the “Agreement”) is made as of the between:
(1) whose principal place of business is at (the "First Party")
(2) whose principal place of business is at (the "Second Party")
Whereas, The First Party and the Second Party (hereinafter referred to as “the Parties” collectively and “Party” individually) wish to enhance their business opportunities and have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained in this Agreement, the First Party and the Second Party agree as follows:
1. Scope of Services
(a) Each Party shall identify and introduce prospective clients to the other Party ("Prospective Client") in exchange for a commission if the other Party generates Income from such Prospective Client in accordance with the terms and conditions of this Agreement.
("Service"). “Income” is the net payment received from the Prospective Client and which has been paid in full pursuant to an agreement between the Receiving Party and the Prospective Client.
(b) The Referring Party shall identify all Prospective Clients in writing to the Receiving Party. In carrying out the Services, the Referring Party shall utilize its best efforts to identify opportunities, facilitate introductions and communications with Prospective Clients, exchange information and arrange meetings between the Receiving Party and the Prospective Client. "Referring Party" is the party referring Prospective Clients to the other party. "Receiving Party" is the party receiving referrals of Prospective Clients from the Referring Party.
(ᴄ) The Referring Party shall not be deemed to have discovered any Prospective Clients and shall not be entitled to receive a commission (as described below) for Prospective Clients:
(i) who contacted or were contacted by the Receiving Party on or before the Effective Date of thisAgreement; or
(ii) any Prospective Clients who hereafter contact or are contacted by the Receiving Party Party, after theEffective Date, before being identified and introduced in writing by the Referring Party to the Receiving Party.
(d) The Parties agree that the Prospective Client will be deemed to be rejected by the Recipient Party if not accepted in writing within 10 days of receiving the referral of the Prospective Client in the manner specified by the Receiving Party.
2. Commission
(a) The Receiving Party shall pay a one-time fee per Prospective Client to the Referring Party in an amount equal to the Income generated from a Prospective Client referred by the Referring Party.
(b) Upon determination of the Referring Party's commission by the Receiving Party, the Referring Party shall issue an invoice to the Receiving Party.
(ᴄ) Any payment of commission to the Referring Party shall be made by the Receiving Party within30 days from the date of receiving non-refundable Income from the Prospective Client under the terms of the agreement between Recipient Party and the Prospective Client.
(d) For the avoidance of doubt, the Receiving Party shall have no obligation to pay any commission to theReferring Party:
(i) if the Income is not received in full from the Prospective Client;
(ii) if the Recipient Party does not enter into an agreement to provide services for a Prospective Client;
(ii) any agreement entered into between Recipient Party and the Prospective Client is cancelled by the
Prospective Client, whether or not due to a default by Recipient Party, without payment being received by Recipient; or
(e) Referral Party acknowledges that the commission is the only compensation Referring Party shall receive in connection with Referring Party's efforts and that all goodwill and benefit derived from such efforts shall insure to the sole benefit of the Receiving Party.
3. Obligations of the Referring Party
(a) The Referring Party agrees to diligently work in an endeavour to identify and introduce ProspectiveClients for the Receiving Party.
(b) The Referring Party will not make any representations, warranties, undertakings or commitments binding the Receiving Party without the prior written consent of the Receiving Party.
(ᴄ) The Referring Party will not have the capacity to enter into any legal agreement (whether oral or written) with any Prospective Client on behalf of the Receiving Party. The Receiving Party shall have the sole discretion to negotiate and accept the terms of any legal agreement with any Prospective Client.
(d) The Referring Party shall not carry additional competing lines without the full knowledge and consent of the Receiving Party.
(e) The Referring Party agrees to keep all of the Receiving Party’s business secrets confidential at all times during and after the term of this Agreement. The Receiving Party’s business secrets include any information regarding the Receiving Party’s clients, manufacturers suppliers, finances, research, development, manufacturing processes, or any other technical or business information. The Referring Party agrees not to make any unauthorised copies or records of any of the Receiving Party’s business secrets or information nor to remove any of the Receiving Party’s business secrets or information from the Receiving Party’s facilities without the Receiving Party’s consent. Any breach of this Clause shall entitle the Receiving Party to injunctive relief and/or liquidated damages and/or account of profits for any said breach, or otherwise.
(f) Nothing contained herein shall obligate the Receiving Party to negotiate or close any sale opportunity presented by the Referring Party.
(g) The Receiving Party retains all of its intellectual property rights in and to its Confidential
Information. Immediately upon a written request by the Receiving Party at any time, the Referring Party will turn over to the Receiving Party all Confidential information of the Receiving Party and all documents or media containing any Confidential Information of the Receiving Party and any and all copies or extracts thereof. Further, the Referring Party shall promptly return to the Receiving Party all copies, whether in written, electronic, or other form or media, of the Receiving Party’s Confidential Information, or destroy all such copies and certify in writing to the Receiving Party that such Confidential Information has been destroyed. In addition, the Broker shall also destroy all copies of any Notes created by the Referring Party or its authorized Representatives and certify in writing to the Receiving Party that such copies have been destroyed.
(h) The Referring Party shall, within three days of demand, indemnify the Company against any cost,expenses, loss, damages, fees and liability (including but not limited to any legal fees and amounts awarded by any court of law) arising from or as a result of any communications, actions and/or interactions between the Referring Party and any Prospective Client, including but not limited to communication resulting in misrepresentation to any Prospective Client and actions of the Referring Party that are ultra vires.
4. Term
The term of this Agreement shall commence on the ("Effective Date") and shall continue in full force and effect until terminated in accordance with the terms of this Agreement.
5. Termination
(a) Either party shall have the right to terminate this Agreement at any time, provided that written notice of intention to terminate is given to the other party at least thirty days before the intended termination date.
(b) Paragraph (e) of Clause 3 (Obligations of the Referring Party) shall survive the termination of thisAgreement.
(ᴄ) In the event of any termination, the Referring Party shall receive a commission for the Prospective Clients in accordance with terms of Clause 2 of this Agreement.
(d) The Referring Party agrees that he will not solicit or approach any of the Receiving Party's clients,manufacturers or suppliers upon or after the termination of this Agreement. The Referring Party recognises the Receiving Party’s legitimate business interest in respect of the Receiving Party’s clients, manufacturers and suppliers and as such agrees that any breach of this Clause shall entitle the Receiving Party to injunctive relief and/or liquidated damages and/or account of profits for any said breach, or otherwise.
6. Limitation of Liability
Under no circumstances shall either party be liable for any indirect, incidental, economic, special, punitive or consequential damages, whether for breach of contract, negligence or under any other cause of action, that result from the referral of Prospective Clients contemplated by this Agreement.
7. Miscellaneous
(a) The Referring Party will serve as an independent contractor and not as an employee of theReceiving Party. The Referring Party will not be enrolled by the Receiving Party in any provident fund scheme. The Referring Party shall be responsible to pay all withholding and other taxes. The Referring Party will bear all expenses incurred in his/her endeavours to provide Services under this Agreement except for those for which the Receiving Party agrees in writing to pay.
(b) Any notices given under this Agreement shall be made in writing or by email. The addresses of the parties are as follows:
Receiving Party
Address:
E-mail:
For the attention of:
Referring Party
Address:
E-mail:
For the attention of:
(ᴄ) No failure to exercise, nor any delay in exercising, on the part of the Receiving Party, any right or remedy under this Agreement shall operate as a waiver of any such right or remedy or constitute an election to affirm this Agreement. No election to affirm any of this Agreement on the part of the Receiving Party shall be effective unless it is in writing. No any single or partial exercise of any right or remedy shall prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights or remedies provided by law.
(d) The parties hereto agree that this Agreement constitutes and expresses the whole Agreement of the parties with reference to the representation, and compensation for or in respect to the Broker's’s efforts on behalf of the Receiving Party, and all promises, undertakings, representations, agreements, and understandings and arrangements entered into between the parties herein. No alterations or variations of the terms of this Agreement shall be valid unless made in writing, dated, and signed by both parties. It cancels and supersedes all prior agreements and understandings.
(e) If any provision of this Agreement shall be found invalid or unenforceable to any extent, the remainder of this Agreement, or the application thereof to other situations, shall not be affected thereby. This Agreement shall be binding and inure to the benefit of the parties and their personal representatives, successors and assigns.
(f) This Agreement may not be assigned by either party without the prior written consent of the otherParty.
8. Governing laws and jurisdiction
9. No Rights under Contracts for Third Parties
A person who is not a party to the Agreement shall have no right under the Contracts (Rights of Third Parties) Ordinance to enforce any of its terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written.
