The latest version was saved by David Blanco Giró on 2008-10-09 17:42:22
TRACTIS REFERRAL AGREEMENT
This Referral Agreement (the “Agreement”) is made effective as of the date [fecha_del_contrato] of execution (the “Effective Date”) and entered by and between “Negonation Platform”, a limited liability company having its registered office at Plaza Can Suris s/n, Cornellà de Llobregat. 08940. Barcelona, Spain publicly known by the commercial name and registered trademark “Tractis” (hereinafter referred “TRACTIS”) and [Referring_Party/Company/Name] , a company with registered office at [Referring_Party/Company/Physical_Address] , [Referring_Party/Company/Zip] , [Referring_Party/Company/City] , [Referring_Party/Company/State] , [Referring_Party/Company/Country] (“The Referring Party”).
IN CONSIDERATION of the mutual promises and covenants hereinafter contained and other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:
Section 1 - Definitions
For the purposes of this Agreement, the following definitions shall apply:
- "Prospect" means each business entity referred to TRACTIS by Referring Party as a potential customer for the Solution.
- “Accepted Prospect” means each Prospect accepted by TRACTIS according to the provisions stated in section 3.3.1. of this Agreement.
- "Customer” means an Accepted Prospect having executed a Customer Agreement with TRACTIS.
- "Customer Agreement" means an agreement with a Customer whereby TRACTIS provides its Solution.
- "Solution" means TRACTIS’ proprietary suite of solutions.
- "Referral Fee" means the amount of fees to be paid to Referring Party by TRACTIS for an Accepted Referral according to the provisions of Section 4.
- "Territory" means [Referring_Party/Company/Territory] , with the exception of all the existing customers of TRACTIS at the date of this contract.
Section 2 - Object
The specific object of this Agreement shall be the performance by the Referring Party of the duties described below.
Referring Party may from time to time refer and recommend the Solution to certain business entities located on the Territory in return for Referral Fees and subject to the terms and conditions stated in this Agreement.
Section 3 - Responsibilities and Rights of Parties
3.1.- For each Prospect whom Referring Party wishes to refer to TRACTIS to qualify under this Agreement, Referring Party will submit to TRACTIS a completed “Referral Form” (refer to the “Request of Prospect”, by visiting the pertinent page in the Referring party's user account).
TRACTIS may modify the Referral Form from time to time upon notice to Referring Party.
Each such Prospect referral must meet any and all TRACTIS qualifications and criteria as set forth in the above-mentioned “Request of Prospect”. It is completely understood that existing TRACTIS’ customers are not eligible as Accepted Prospects.
3.2.- TRACTIS shall confirm receipt of the Referral Form and confirm, in good faith within 30 days, whether or not the referral qualifies.
3.3.- TRACTIS,attheir sole discretion andfor any reason, shall have the option to accept or refuse certain Prospect referred by the Referring Party.
3.3.1.- In the event TRACTIS decides to accept an specific Prospect, such Prospect shalll be deemed as an Accepted Prospect and Referring Party shall be granted by TRACTIS with a certain period of exclusivity ("Validity period" pursuant to Section 4.1. of this Agreement) to get the Accepted Prospect´s consent to enter an Agreement with TRACTIS.
3.3.2. In the event TRACTIS decides not to accept an specific Prospect, such Prospect shall no be considered as an Accepted Prospect.
Under the above-mentioned circumstances, TRACTIS shall have no obligation to the Referring Party under this Agreement or otherwise with respect to such Prospect.
3.4.- If an Accepted Prospect has:
- not previously entered into an agreement with TRACTIS;
- not previously accepted by TRACTIS as an “Accepted Prospect” being referred or introduced to TRACTIS by any other person, agent or Referring Party; and
- not previously been documented as a Customer (as defined below);
and TRACTIS finally enters into an agreement with such Accepted Prospect, this Accepted Prospect shall be considered a Customer for purposes of this Agreement and TRACTIS shall pay a fee to Referring Party as set forth below in Section 4.
3.5.- In the event a referral of a Prospect is disputed among two or more Referring Parties, finders or other persons, TRACTIS, alone and its sole discretion, shall determine which party is entitled to a fee, if any, based mainly upon who firstly provided it with written notice of such Prospect.
3.6.- Referring Party warrants and represents that, for each Prospect referred to TRACTIS under this Agreement, Referring Party has the authority to make the referral on behalf of the Prospect, and that it, nor any of its directors, officers, or shareholders, have a conflict of interest with the Prospect or with TRACTIS in making the Referral.
3.7.- Referring Party acknowledges that nothing in this Agreement shall prevent or limit TRACTIS from marketing and selling its Solution or any other services, in whole or in part, directly or indirectly, in the Territory or outside, to any prospective customers or from appointing representatives, resellers, distributors and other marketing agents, without liability to Referring Party, except with those ones previously engaged or contracted by the Referring Party, being expressly understood in these circumstances that TRACTIS shall respect the Referring Party’s right.
3.8.- Referring Party agrees not to enter into any agreement similar to this Agreement with a third party who would be in competition with TRACTIS (i.e. a company selling, leasing, licensing or otherwise marketing a product or a service presenting equivalent functions to those of the Solution).
Section 4 - Referral Fees
4.1.- The Referrals Forms shall have a validity period of six (6) months from the date TRACTIS has issued the pertinent acceptance.
However, it is agreed that the Validity Period may be extended by TRACTIS notifying about such extension to the Referring Party and specifying the duration of the extension of the Validity of the “Extended Validity Period”.
4.2.- Once TRACTIS signs a Customer Agreement with an Accepted Prospect within the Validity Period, this situation shall be communicated to the Referring Party, being understood that such information shall include reference to the price specified in the Customer Agreement.
4.3.- Referral Fee shall be paid by TRACTIS within 30 days from the date TRACTIS has received payment from the Customer under the Customer Agreement.
Referral Fee to be recognized to the Referring Party shall amount 25% of the net figures invoiced by TRACTIS to the pertinent Customer until either of the following occurs:
a) a cap is being established by mutual acknowledgment of the Parties to the Referral Fee payable by TRACTIS to the Referring Party: limit of 100.000 euros of Referral Fee;
b) a limited period of 3 (three) years is fixed from the date of execution of the Customer Agreement.
It is understood that the above-mentioned 25% of the invoiced figures shall no longer be payable by TRACTIS when one of the options indistinctly takes place, whichever occurs first.
Referral Fee shall be based on the NET figures of the revenue recognized to TRACTIS, being the Referring Party responsible for payment of all taxes to which the Referral Fee is subject.
Section 5 - Term and termination
5.1.- The initial term of this Agreement shall be one (1) year from the Effective Date and shall be renewed thereafter automatically for successive 12 months periods (“Renewal term”) unless sooner terminated by written notice given by either Party to the other at least three (3) months prior to either (i) the Initial Term or (ii) the current Renewal Term.
5.2.- Either party may terminate this Agreement at any time in the event of a material breach by the other party, which remains uncured after thirty (30) days written notice.
In case of the said breach is caused by TRACTIS, in respect of Referrals made during the term of this Agreement, the provisions concerning the Referral Fee will survive termination and in particular, section 4.3. shall be applied, provided however that the pertinent Customer Agreement which would generate the said Referral Fee is signed within the Validity Period of the relevant Referral Form.
In the event the Referring Party fails to perform or breaches their obligations hereunder, this Agreement shall be terminated with immediate effect and no fees shall be payable, without prejudice to the right of TRACTIS to claim damages for such termination for cause.
Section 6 - Referring Party’s Conduct
Referring Party shall:
- conduct its business in a manner that reflects favorably at all times on the Solution and the good name, goodwill and reputation of TRACTIS;
- avoid deceptive, misleading or unethical practices, that are or might be detrimental to TRACTIS or the Solution;
- make no representations, warranties or guarantees to Prospects or to the trade with respect to the specifications, features or capabilities of the Solution that are inconsistent with the warranties and disclaimers included in or with the Solution;
- comply with all applicable international, national, regional, and local laws in performing its duties hereunder.
Section 7 – Intellectual Property
Referring Party shall not in any manner represent that it has any ownership in the Solution, or in any trademarks or copyrights included in the Solution.
It is therefore understood that all “Copyright” and other “Intellectual Property” rights pertaining to all material provided by TRACTIS for purposes of performing the Referring Party’s duties under this Agreement, belong to TRACTIS, to its affiliates, or to third parties who have authorized TRACTIS or its affiliates to use. They are the exclusive property of TRACTIS and title to the above shall at all times remain with TRACTIS.
Referring Party shall not register or attempt to register any copyright or trademark in the Solution, in its own name or that of any third party, nor shall it assist any third party in doing so.
Section 8 - Confidential Information
Each party acknowledges that it may receive valuable trade and business secrets and other proprietary and confidential information, including, without limitation, information about the other party's business, plans, products, equipment, systems, techniques and practices (collectively, “Confidential Information”).
The Receiving Party shall, and shall cause its employees and agents to, strictly maintain the confidentiality of the Confidential Information and not disclose, disseminate or otherwise give Confidential Information to any other person, firm, organization or third party, except for an employee or agent of Receiving Party who has a reasonable need to know and who is bound in writing to confidentiality obligations commensurate with those included herein.
Notwithstanding the foregoing, the obligations of confidentiality set forth in this Section 8 with respect to Confidential Information shall not apply to any information that:
- is or becomes publicly known without violation by Receiving Party;
- is already known to Receiving Party without restrictions at the time of its disclosure by Disclosing Party, as evidenced by the written records of Receiving Party;
- after its disclosure to Receiving Party by Disclosing Party, is made known to Receiving Party without restrictions by a third party having the right to do so; or
- is legally required to be disclosed by Receiving Party pursuant to a judicial order from a court of competent jurisdiction (provided that Receiving Party promptly informs Disclosing Party of the requirement and affords Disclosing Party a reasonable opportunity to contest the required disclosure).
The foregoing obligations of confidentiality shall survive termination or expiration of this Agreement, for a period of ten (10) years.
Section 9 - Relationship of the Parties
9.1.- The parties shall perform all of their duties under this Agreement as independent contractors.
9.2.- Nothing in this Agreement shall be construed:
- to constitute the parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint ventures, co-owners, or otherwise as participants in a joint undertaking, or
- to transfer, release, or waive any right, title, or interest of the other Party.
9.3.- It is understood that Referring Party is acting as a finder only and shall have no authority to enter into any agreements, obligations or commitments on behalf of TRACTIS. Referring Party hereby agrees to indemnify, defend and hold TRACTIS harmless from and against any claims, actions, lawsuits, damages, awards or judgments arising out of any such agreements, obligations or commitments undertaken by the Referring Party or the breach thereof.
9.4.- Furthermore, each Party understands this Agreement is non-exclusive. Thus, Referring Party acknowledges that TRACTIS may enter into referral agreements or other similar arrangements with other parties and that Referring Party shall have no rights under such agreements or to any fees for customers referred to TRACTIS by others or identified by TRACTIS itself.
9.5.- Referring Party shall bear all costs and expenses associated with its performance hereunder, without right to any claim any reimbursement from TRACTIS. However, Referring Party may claim for reimbursement of reasonable travel expenses referring to trips authorized by TRACTIS outside the Territory assigned to the Referring Party.
9.6.- No other rights or licenses are granted to Referring Party under this Referral Agreement and this Referral Agreement does not grant Referring Party any right to resell or otherwise distribute any product developed or sold by TRACTIS and/or its affiliates or subsidiaries, nor any right to use any TRACTIS trademark, nor any right to provide any services related to any TRACTIS product. Such rights may only be granted by express consent given by TRACTIS.
9.7.- Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL TRACTIS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT REGARDLESS OF THE LEGAL THEORY UPON WHICH SUCH CLAIM FOR DAMAGES IS BASED. IN NO EVENT SHALL TRACTIS’ LIABILITY UNDER THIS REFERRAL AGREEMENT EXCEED THE AMOUNT OF THE REFERRAL FEE FOR THE QUALIFYING TRANSACTION.
Section 10 - Governing Law and Jurisdiction
This Agreement shall be governed by and construed and interpreted in accordance with the laws of Belgium without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than Belgium.
In case of disagreement, both parties will do their utmost to amicably find a mutually satisfying solution. If this is not possible, and in the event of any claim arising out of this Agreement, each party to this Agreement irrevocably submit to the non-exclusive and ordinary jurisdiction of the Courts of Brussels, in Belgium.
Section 11 – Miscellaneous
a) Entire Agreement
This Agreement constitutes the sole and entire understanding between the parties with respect to the subject matter hereof and may not be altered or amended except with the mutual consent expressed by both parties.
This Agreement supersedes all prior communications or agreements written or oral, and is intended as a complete and exclusive statement of the terms of the Agreement between the parties.
All notices and other communications under this Agreement shall be made through TRACTIS’ platform, by electronic communications, with acknowledgement of receipt to the addresses set forth by TRACTIS and the Referring Party.
Parties hereby agree and understand that this electronic communication process is both, secure and legally binding, so that no only the contract shall be concluded or evidenced by these means -provided that all the terms and conditions of this Agreement are complied- but also the Referring Party hereby expressly consents to receive such electronic communications of that type, in that format, to that address and date-stamped by third parties.
Pursuant to European regulations in force, both parties shall provide the information required and stated by local law, apart from the following:
- Postal address: Plaza Can Suris s/n, Cornellà de Llobregat. 08940. Barcelona. Spain
- Email address: email@example.com
- Attention: David Blanco Giró
- Postal address: [Referring_Party/Company/Name] , [Referring_Party/Company/Physical_Address] , [Referring_Party/Company/Zip] , [Referring_Party/Company/City] , [Referring_Party/Company/State] , [Referring_Party/Company/Country]
- Email address: [Referring_Party/Contact/Email]
- Attention: [Referring_Party/Contact/Name]
For the purposes of the celebration, application and interpretation of this Agreement, it is clearly understood that one or more counterparts may be executed and that electronic signatures through TRACTIS’ platform will be sufficient to indicate acceptance by the parties.
d) No Assignment
The rights and obligations of Referring Party under this Agreement are personal to Referring Party and may not be assigned, mortgaged, sublicensed or otherwise transferred or encumbered by Referring Party or by operation of law. Any purported assignment or other transfer by Referring Party of any rights granted to it under this Agreement shall be void and of no effect.
e) Referring Party Profile
- Referring Party Company
- Company Name: [Referring_Party/Company/Name] .
- Physical Address: [Referring_Party/Company/Physical_Address] .
- City: [Referring_Party/Company/City] .
- State: [Referring_Party/Company/State] .
- Country: [Referring_Party/Company/Country] .
- Zip: [Referring_Party/Company/Zip] .
- Telephone: [Referring_Party/Company/Telephone] .
- Web Site URL: [Referring_Party/Company/Website] .
- Referring Party Key Contact:
- Contact Name: [Referring_Party/Contact/Name] .
- Contact Position: [Referring_Party/Contact/Position] .
- Telephone: [Referring_Party/Contact/Phone_Number] .
- Email: [Referring_Party/Contact/Email] .
IN WITNESS WHEREOF, the Parties hereto have executed and celebrated this Agreement by the above-mentioned means, on the date and place as mentioned below.
- Name of legal representative: [Referring_Party/Legal_representative/Name] .
- Position: [Referring_Party/Legal_representative/Position] .
TRACTIS (Negonation Platform S.L.)
- Name of legal representative: David Blanco Giró.
- Position: CEO and Legal Representative.