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A balanced business-to-business agreement for a Referrer to introduce potential customers to a Company for a referral fee, for cross-border introductions under a chosen law, with arbitration or chosen courts, with registration of referrals, an attribution window, percentage or fixed fees, tail fees and compliance safeguards.
International / Cross-Border
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This agreement is dated the date on which it is signed by the last of the parties.
This agreement is made between [TO BE CONFIRMED — Company legal name and details] (the "Company") and [TO BE CONFIRMED — Referrer legal name and details] (the "Referrer").
"Offering" means [TO BE CONFIRMED — Company's products or services the Referrer may introduce customers for].
"Territory" means [TO BE CONFIRMED — Territory (where Prospects must be based)].
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A balanced business-to-business agreement for a Referrer to introduce potential customers to a Company for a referral fee, under ADGM law with the ADGM Courts or ADGM-seated arbitration, with registration of referrals, an attribution window, percentage or fixed fees, tail fees and compliance safeguards.
"Fee Period" means, for each Referred Customer, the period of [TO BE CONFIRMED — Period over which a percentage fee is earned] starting on the date of the first Customer Contract resulting from its Qualifying Referral.
"Referral Fee Amount" means [TO BE CONFIRMED — Fixed referral fee per Qualifying Referral].
"Referral Fee Cap" means [TO BE CONFIRMED — Maximum total Referral Fee per Referred Customer].
"Attribution Window" means 6 months.
"Review Period" means 10 Business Days.
"Statement Period" means each calendar quarter.
"Payment Period" means 30 days after receipt of a valid invoice.
"Initial Term" means [TO BE CONFIRMED — Initial Term].
"Termination Notice Period" means 30 days.
"Tail Period" means [TO BE CONFIRMED — Tail Period after termination for percentage fees].
"Non-circumvention Period" means [TO BE CONFIRMED — Non-circumvention Period].
"Cure Period" means 30 days.
"Liability Cap" means [TO BE CONFIRMED — Liability Cap (amount or formula)].
"Late Payment Rate" means 4% a year above the base rate from time to time of the central bank that issues the currency of the overdue amount.
"Governing Law" means the law of [TO BE CONFIRMED — Governing law (country or state)].
"Courts" means the courts of [TO BE CONFIRMED — Courts with jurisdiction (city and country)].
"Arbitration Rules" means [TO BE CONFIRMED — Arbitration rules and administering institution].
"Seat" means [TO BE CONFIRMED — Seat of arbitration (city and country)].
"Business Day" means a day other than a Saturday, Sunday or public holiday in the place where the relevant obligation is to be performed or the relevant notice is to be received.
"Confidential Information" means all information of a confidential nature, in any form, that a party or its representatives disclose to the other party in connection with this agreement, including the terms of this agreement, Prospect information, Referral Fees and statements, and information about the disclosing party's business, customers, suppliers, products, processes, plans and know-how.
"Customer Contract" means a binding contract between the Company and a Prospect for the supply of the Offering.
"Net Revenue" means the amounts the Company actually receives in cleared funds from a Referred Customer for the Offering under a Customer Contract, excluding value added, sales and similar taxes, shipping and pass-through charges, and amounts refunded, credited, charged back or written off as bad debt.
"Prospect" means a business or other organisation, other than the Referrer and its affiliates, that the Referrer identifies as a potential customer for the Offering and, where a Territory applies, that is based in the Territory.
"Qualifying Referral" means a Referral that the Company has accepted under the Referral Process clause, where the Prospect enters into a Customer Contract within the Attribution Window after the date of acceptance.
"Referral" means a Prospect that the Referrer registers with the Company under the Referral Process clause.
"Referral Fee" means the fee payable to the Referrer for a Qualifying Referral under the Referral Fees clause.
"Referred Customer" means a Prospect that is the subject of a Qualifying Referral.
Where a party is an individual, "it" and "its" include him or her and "his" and "her"; a reference to a party's officers, board, constitution or being duly incorporated or organised applies only to a party that is a body corporate or other entity; and a reference to a party's insolvency includes, for an individual, bankruptcy or any equivalent procedure in any jurisdiction.
The Company appoints the Referrer, on a non-exclusive basis, to identify and introduce Prospects to the Company for the Offering during the term of this agreement, and the Referrer accepts the appointment. The Company may appoint other referrers and may market the Offering directly or through others.
The Referrer's role is limited to identifying Prospects and introducing them to the Company. The Referrer must not negotiate or conclude any contract, quote prices or terms, accept orders or payments, or make any representation, warranty or commitment on the Company's behalf.
Neither party is obliged to introduce, or to accept, any minimum number of Referrals.
To register a Referral, the Referrer must give the Company written details of the Prospect, a contact person and the opportunity, through any referral portal or form the Company reasonably specifies, and must confirm that the Prospect has agreed to be introduced and to its contact details being passed to the Company.
The Company must accept or decline each registration by written notice within the Review Period. It may decline a registration only if the Prospect is an existing customer of the Company, is already in active discussions with the Company about the Offering, has already been registered by another person and accepted, or is a person the Company reasonably decides not to deal with, and it must give its reason. A registration the Company does not decline within the Review Period is treated as accepted.
The Company decides in its sole discretion whether to enter into a Customer Contract with any Prospect and on what terms, and has no liability to the Referrer if it does not.
If more than one referrer registers the same Prospect, only the first registration the Company accepts can give rise to a Referral Fee.
On reasonable request, the Company must tell the Referrer whether each accepted Referral has resulted in a Customer Contract.
For each Qualifying Referral, the Company must pay the Referrer the Referral Fee Percentage of the Net Revenue received from the Referred Customer during that Referred Customer's Fee Period.
A Referral Fee is earned only when the Company has received payment in cleared funds from the Referred Customer: for a percentage fee, on the Net Revenue actually received; for a fixed fee, once the Referred Customer has paid its first invoice under the Customer Contract in full. If the Company later refunds or credits an amount on which a Referral Fee has been paid, it may deduct the corresponding Referral Fee from later payments to the Referrer.
The total Referral Fees payable for any one Referred Customer must not exceed the Referral Fee Cap.
The Referral Fees are the Referrer's only remuneration under this agreement. Each party bears its own costs, unless the Company agrees in writing in advance to reimburse a particular expense.
The Referral Fees are exclusive of value added tax, goods and services tax, sales tax and similar taxes, which the Company must pay where properly chargeable on receipt of a valid tax invoice. Each party is responsible for taxes on its own income.
If the law requires the Company to deduct or withhold tax from a payment, it may do so, but must pay the amount withheld to the relevant authority on time, give the Referrer evidence of payment, and cooperate with the Referrer to claim any available reduction, exemption or credit under a double tax treaty.
Within 15 Business Days after the end of each Statement Period in which a Referral Fee is earned, the Company must send the Referrer a statement showing, for each Referred Customer, the Net Revenue received in that period (where the fee is a percentage) and the Referral Fees earned.
The Referrer may invoice the Referral Fees shown in a statement, and the Company must pay each valid invoice within the Payment Period to the bank account the Referrer notifies in writing.
The Company must keep accurate records of the Net Revenue and Referral Fees for each Referred Customer for at least two years after the Referral Fee is paid and, on reasonable request, must give the Referrer reasonable supporting information for any statement, subject to its duties of confidentiality to its customers.
If the Company does not pay an undisputed amount by its due date, the Company must pay interest on the overdue amount at the Late Payment Rate, accruing daily from the due date until the date of actual payment, whether before or after judgment.
The Referrer must describe the Company and the Offering accurately, using only the information and marketing materials the Company provides or approves, and must not make any statement about the Offering, its price or its terms that the Company has not approved.
The Referrer must comply with all laws that apply to its activities under this agreement, including laws on marketing, unsolicited communications and the licensing of introducers.
Before or when introducing a Prospect, the Referrer must tell the Prospect that the Referrer may receive a fee from the Company if the Prospect becomes a customer.
The Referrer must tell the Company before registering a Prospect if the Referrer, or any of its personnel, is an officer, employee, adviser or agent of the Prospect, or otherwise owes the Prospect a duty in relation to its decision to buy the Offering, or is a public official able to influence that decision. The Company may then decline the registration.
The Company must give the Referrer reasonable information about the Offering and approved marketing materials, and must deal with accepted Referrals in good faith and in the ordinary course of its business.
The Company grants the Referrer a non-exclusive, non-transferable, revocable licence during this agreement to use the Company's name, trade marks and approved marketing materials solely to introduce Prospects under this agreement and in accordance with any brand guidelines the Company notifies to it. All goodwill from that use belongs to the Company.
The Referrer acts as an independent contractor. It is not the Company's agent, employee, partner or representative, has no authority to bind the Company, and must not hold itself out as having any such authority. The Referrer is responsible for its own personnel, costs and taxes.
During the Non-circumvention Period after accepting a Referral, the Company must not deliberately deal with the Prospect directly, or through another person, for the purpose of avoiding a Referral Fee that would otherwise be payable. If it does, any Customer Contract the Company enters into with that Prospect in that period is treated as resulting from a Qualifying Referral.
Each party must comply with all anti-bribery and anti-corruption laws that apply to it, including, where they apply, the UK Bribery Act 2010 and the US Foreign Corrupt Practices Act of 1977 and all other anti-bribery and anti-corruption laws that apply to it in connection with this agreement, and must not offer, give, request or accept any bribe or other improper payment or advantage.
The Referrer must not offer or give any payment, gift, rebate, discount or other benefit to a Prospect, its personnel or any public official to induce a Customer Contract, and must not share any Referral Fee with any of them.
The Referrer confirms that its activities under this agreement do not require any licence, authorisation or registration in any country that it does not hold, and must stop introducing Prospects and notify the Company immediately if that changes.
The Referrer must not introduce any Prospect that it knows, or should reasonably suspect, is the subject of sanctions that apply to either party.
If the Referrer breaches this clause, the Company may terminate this agreement immediately by written notice, and no Referral Fee is payable for any Referral affected by the breach.
Each party (the recipient) must keep confidential the Confidential Information of the other party (the discloser), must use it only to perform its obligations and exercise its rights under this agreement, and must protect it with at least the care it uses for its own confidential information and no less than reasonable care.
The recipient may disclose the discloser's Confidential Information to its own and its affiliates' officers, employees, professional advisers, insurers and subcontractors who need to know it for the purposes of this agreement and are bound by duties of confidentiality no less protective than this clause, and the recipient is responsible for their compliance. The recipient may also disclose Confidential Information to the extent required by law, a court or a regulator, provided that, where lawful, it gives the discloser prompt notice and limits the disclosure to what is required.
This clause does not apply to information that the recipient can show is or becomes publicly available other than through a breach of this agreement, was lawfully known to it without restriction before disclosure, is lawfully received from a third party free to disclose it, or is independently developed without use of the discloser's Confidential Information.
The obligations in this clause continue during this agreement and for five years after it ends, and for any trade secret for as long as it remains a trade secret. On request after this agreement ends, the recipient must return or securely destroy the discloser's Confidential Information, except copies it must keep by law or that are held in routine back-up systems, which remain subject to this clause.
Each party processes the personal data of Prospects and their contacts that it holds as an independent controller, and must comply with the data protection laws that apply to it in doing so.
Before passing a Prospect's personal data to the Company, the Referrer must ensure that it has a lawful basis for doing so and has given any notice that the law requires, and must share only the personal data the Company needs to assess and pursue the opportunity.
The Company may use personal data received from the Referrer only to assess and pursue the opportunity and, if a Customer Contract results, to perform it. The Referrer may use information it receives about Referred Customers only to verify its Referral Fees.
Each party must give the other reasonable help with any request, complaint or personal data breach concerning personal data shared under this agreement.
Each party warrants that it has full power and authority to enter into and perform this agreement. The Company makes no promise that any Referral will result in a Customer Contract or in any level of Referral Fees.
Nothing in this agreement limits or excludes liability for death or personal injury caused by negligence, for fraud or fraudulent misrepresentation, or for any other liability that cannot lawfully be limited or excluded.
Subject to the liabilities that this clause leaves unlimited, neither party is liable to the other for loss of profit, loss of revenue, loss of business, loss of goodwill, loss of anticipated savings, or any indirect or consequential loss, arising out of or in connection with this agreement. Referral Fees properly due are not excluded by this provision.
Subject to the liabilities that this clause leaves unlimited, each party's total liability arising out of or in connection with this agreement, whether in contract, tort (including negligence), breach of statutory duty or otherwise, is limited to the Liability Cap. This limit does not apply to the Company's obligation to pay Referral Fees properly due, or to a party's liability for breach of the Compliance or Data Protection clauses.
This agreement starts on the date of this agreement and continues for the Initial Term. After that, it continues until either party terminates it by giving the other at least the Termination Notice Period's written notice.
Either party may also terminate this agreement during the Initial Term by giving the other at least the Termination Notice Period's written notice.
Either party may terminate this agreement immediately by written notice if the other party commits a material breach of it that is not capable of remedy, or that is capable of remedy and is not remedied within the Cure Period after written notice giving details of the breach and requiring it to be remedied.
Either party may terminate this agreement immediately by written notice if the other party becomes unable to pay its debts as they fall due, enters into any insolvency, bankruptcy, administration, liquidation or similar proceeding or any composition or arrangement with its creditors (other than for a solvent reorganisation), or ceases or threatens to cease to carry on business, or, if the other party is an individual, is declared bankrupt or becomes subject to any insolvency or debt-settlement procedure for individuals in any jurisdiction, dies or becomes incapable of managing his or her affairs, to the extent the law allows termination on that ground.
Ending this agreement does not affect Referral Fees already earned. The Company must also pay Referral Fees, on the terms of this agreement, for Referrals accepted before this agreement ended that become Qualifying Referrals within the Attribution Window.
Where a Referral Fee calculated as a percentage of Net Revenue is payable after this agreement ends, it is payable only on Net Revenue received before the earlier of the end of the relevant Referred Customer's Fee Period and the end of the Tail Period after this agreement ended.
When this agreement ends, the Referrer must stop introducing Prospects and using the Company's name, trade marks and marketing materials, and each party must return or destroy the other's Confidential Information in accordance with the Confidentiality clause. Ending this agreement does not affect any accrued rights or remedies, or the continuation of any provision intended to continue, including the Referral Fees, Statements and Payment (including record-keeping and any audit right), Compliance, Confidentiality, Data Protection, Liability, Notices, General, Interpretation and Governing Law and Disputes clauses, the provisions of the Term and Termination clause on Referral Fees payable after this agreement ends, and any non-circumvention obligation for its stated period.
A notice under this agreement must be in writing in English and delivered by hand, by courier or by email to the Company at [TO BE CONFIRMED — Company notice address and email] or to the Referrer at [TO BE CONFIRMED — Referrer notice address and email], or to any other address a party notifies to the other under this clause.
A notice is received when delivered by hand or courier, or when an email enters the recipient's email system, unless the sender receives a delivery failure message. A notice received outside 9.00 am to 5.00 pm on a Business Day, in the place of receipt, is treated as received at 9.00 am on the next Business Day. This clause does not apply to the service of proceedings or other documents in legal proceedings or arbitration.
Neither party may assign, transfer or otherwise deal with any of its rights or obligations under this agreement without the other party's prior written consent, which must not be unreasonably withheld or delayed, except that either party may assign this agreement to a purchaser of all or substantially all of the business to which it relates on written notice to the other party.
This agreement is the entire agreement between the parties about its subject matter and replaces all earlier drafts, agreements, arrangements and understandings between them about it. Each party acknowledges that it has not relied on any statement, representation or assurance that is not set out in this agreement. Nothing in this clause limits or excludes liability for fraud.
A variation of this agreement is effective only if it is in writing and signed by authorised representatives of both parties.
A failure or delay in exercising a right or remedy is not a waiver of it. A waiver is effective only if given in writing and applies only to the circumstance for which it is given.
If any provision of this agreement is or becomes invalid, illegal or unenforceable, it is to be treated as modified to the minimum extent necessary to make it valid, legal and enforceable or, if that is not possible, deleted. The rest of this agreement is not affected.
Nothing in this agreement creates a partnership, joint venture, agency, employment or fiduciary relationship between the parties, and neither party has authority to bind the other.
A person who is not a party to this agreement has no right to enforce any of its terms.
This agreement may be signed in any number of counterparts, each of which is an original and which together form one agreement, and may be signed electronically.
This agreement and any non-contractual obligations arising out of or in connection with it are governed by the Governing Law, without regard to any conflict-of-laws rule that would apply another law.
Any dispute arising out of or in connection with this agreement, including any question about its existence, validity or termination, will be finally resolved by arbitration under the Arbitration Rules by a sole arbitrator. The seat of the arbitration is the Seat and the language of the arbitration is English. Nothing in this clause prevents a party from seeking urgent interim relief from any court of competent jurisdiction.
This agreement is made in English. If it is translated into another language, the English text prevails.
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