THIS FEE SHARING AGREEMENT is entered into on [insert date]
BETWEEN
(1) [insert your name/name of your company] whose principal place of business
is at California, United States of America (the Servicer)
(2) [insert name of client] whose principal place of business is at California,
United States of America (the Referrer)
WHEREAS
The parties agree that the Servicer will share its fees with the Referrer, in
consideration for the Referrer referring clients to Servicer.
It is agreed as follows:
1. Interpretation
Definitions
"Agreement" means any agreement made subject to the terms and conditions
below;
"Excluded Persons" means existing clients of the Servicer or potential clients
who have already approached the Servicer to negotiate terms of the Services.
Excluded Persons also include their affiliates;
"Services" means the following
1. Acquire a lead that wants to have their Christmas lights installed by a
professional on behalf of the Servicer
2. [expound on the duties/ other duties to be carried out by Referrer on
behalf of the Servicer];
"Service Fees" means in relation to any Services, the fees charged by the
Servicer to the client, less:
a. any sales tax, turnover tax, value added tax or other tax payable thereon;
b. any expenses or out-of-pockets disbursements.
whether or not such items are separately invoiced;
2. Referral Term
For a period of 12 months after the date hereof (the "Term"), which shall be
automatically renewed for additional periods of the same duration as the Term,
unless either party requests termination at least thirty (30) days prior to the end
of the then-current Term, the Servicer engages the Referrer on a Non-exclusive
basis, to source independent third-party clients to its Services, and the Referrer
accepts the Servicer’s engagement.
3. Servicer’s obligations
3.1 The Servicer agrees to share with Referrer, as compensation in respect of
any client (excluding Excluded Persons) referred to Servicer by Referrer
(“Referred Client”), 25% of any Service Fees its received from Referred Client
(the “Commission”).
3.2 Any payment of Commission to Referrer in respect of this Agreement shall
be made by Servicer within 10 business days after the date of receipt from
Referred Client. For the avoidance of doubt, Servicer shall have no obligation to
pay Referrer in respect of any service invoiced but have not been paid by the
Referred Client.
3.3 The Commission shall be reduced in proportion to any claim or liability
against the Servicer by Referred Clients. Referrer agrees to refund to the
Servicer any Commission already paid to Referrer under these circumstances.
For the avoidance of doubt, the Commission shall not be negative and any
refund by the Referrer shall not exceed the Commission.
3.4 The Servicer shall have the primary responsibility of performing any agreed
Services for Referred Client. Such service agreement will be entered into
directly between Servicer and Referred Client.
3.5 The Servicer shall comply with, and give all notices required by, any statute,
any statutory instrument, rule or order or any regulation or bylaws applicable to
the Services.
3.6 The Servicer shall obtain adequate insurance cover in respect of all risks
relating to this Agreement and the Services normally covered by insurance in
accordance with good industry practice.
3.7 The Servicer shall be responsible for obtaining all licenses, permits and
approvals which are necessary or advisable for the Services and for the
performance of its duties hereunder.
3.8 The Servicer shall keep separate records and accurate accounts of all
Services made by it in relation to the Referred Clients and shall permit the
Referrer or its duly appointed representatives to inspect all such records and
accounts and take copies thereof at all reasonable times (but not exceeding
once in any Quarter).
3.9 Subject to compliance by the Referrer with its obligations under this
Agreement, the Servicer shall indemnify the Referrer against any liability
(including, without prejudice to the generality of the foregoing, all costs and
expenses which the Referrer may reasonably incur in defending any
proceedings) which it may incur by reason only of its being held out as the
Servicer’s agent.
4. Obligations of Referrer
4.1 Referrer agrees to use its existing connections and channels to secure
business for Servicer. Referrer may only describe itself as the Servicer’s
authorized Agency for the Services.
4.2 Referrer will continue to liaise with Referred Clients on behalf of the Servicer
in relation to the Service.
4.3 Referrer may disclose, in general terms, information concerning the Servicer
to Referred Clients and potential Referred Clients but only so far as is
necessary in good faith to promote the Services.
4.4 Referrer may use the Trademark and such of the Servicer’s other know-
how, patents, copyright, trade names, trademarks and patents (the "Rights") as
the Servicer may from time to time authorise in writing exclusively in performing
its duties in this Agreement. Referrer shall not take any action which may
adversely affect the Rights or the Servicer’s title to them and shall not gain any
title to the Rights.
4.5 Referrer will not have the capacity to enter into any legal agreement
(whether oral or written) with any client on behalf of Servicer. Servicer shall
have the sole discretion to negotiate and accept the terms of any legal
agreement with any client. Any representations made or agreements entered
into by the Referrer in relation to the Services or otherwise shall be its exclusive
responsibility. The Referrer shall not incur any liability on behalf of the
Servicer.
5. Confidentiality
5.1 Referrer shall treat as confidential all information which the Servicer may
make available to it pursuant to this Agreement or the negotiations in respect
thereof ("the Confidential Information") and shall not without the prior written
consent of the Servicer:
(a) exploit any part of the Confidential Information save as is reasonably
necessary to enable it to sell the Products; or
(b) disclose any part of the Confidential Information other than to its employees
or clients (or potential clients) who need to know the Confidential Information for
the purpose of this Agreement provided that:
i. such person is made aware prior to disclosure of the proprietary and
confidential nature of the Confidential Information; and
ii. such person owes an express duty of confidence to Referrer, which
Referrer shall enforce.
5.2 Referrer may disclose, in general terms, relevant parts of the Confidential
Information to customers and potential customers but only so far as is
necessary in good faith to promote the sale of the Products.
5.3 The Rights, the Confidential Information and all proprietary and intellectual
property rights in the Products shall belong to the Servicer.
5.4 Referrer shall promptly notify the Servicer of any infringement of the Rights
or Confidential Information in the Territory, and of any claim that the import or
sale of Products into the Territory infringes any person’s rights, of which it may
become aware and shall at the request and expense of the Servicer take such
action in respect of the infringement, or claim, as the Servicer may request.
5.5 The provisions of this clause 5 shall remain in force after the termination of
this Agreement for any reason.
6. General
6.1 Referrer shall not mortgage, charge or assign any rights or transfer,
delegate or sub contract the performance of any obligation under this
Agreement without the Servicer’s prior written consent.
6.2 Referrer and the Servicer are independent contractors and Referrer is not,
and shall not represent itself to be, a partner, joint venturer, agent, employee or
representative of the Servicer.
6.3 No waiver of any rights arising under this Agreement shall be effective
unless in writing and signed by a duly authorised signatory of the party against
whom the waiver is to be enforced. No failure or delay by either party in
exercising any right, power or remedy under this Agreement (except as
expressly provided herein) shall operate as a waiver of any such right, power or
remedy.
6.4 If any provision of this Agreement should become illegal or void for any
reason, the validity of the remaining provisions shall not be affected and the
parties shall enter into negotiations in good faith to find a replacement for the
provision which is of similar economic effect.
6.5 No addition to or modification of any provision of this Agreement shall be
binding upon the parties unless made by a written instrument signed by a duly
authorised signatory of each of the parties.
6.6 This Agreement sets out the entire agreement and understanding between
the parties with respect to the subject matter hereof. This Agreement
supersedes all previous agreements, arrangements and understandings
between the parties with respect to the subject of this Agreement, which shall
cease to have any further force or effect. It is agreed that:
a. neither party has entered into this Agreement in reliance upon any
representation, warranty or undertaking of the other party which is not
expressly set out or referred to in this Agreement, and all conditions,
warranties or other terms implied by statute or common law are hereby
excluded to the fullest extent permitted by law;
b. no claim or remedy under this Agreement in respect of misrepresentation
(whether negligent or otherwise, and whether made prior to, and/or in,
this Agreement) or untrue statement made by the other party;
c. this clause shall not exclude any liability for fraudulent misrepresentation.
7. Termination
7.1 Either party shall be entitled forthwith to terminate this Agreement by written
notice to the other if:
(a) that other party commits any breach of any of the provisions of this
Agreement and, in the case of a breach capable of remedy, fails to remedy the
same within 10 days after receipt of a written notice giving full particulars of the
breach and requiring it to be remedied;
(b) an encumbrancer takes possession or a receiver is appointed over
any of the property or assets of that other party;
(c) that other party makes any voluntary arrangement with its creditors or
becomes subject to an administration order;
(d) that other party goes into liquidation (except for the purposes of
amalgamation or reconstruction and in such manner that the company resulting
therefrom effectively agrees to be bound by or assume the obligations imposed
on that other party under this Agreement);
(e) anything analogous to any of the foregoing under the law of any
jurisdiction occurs in relation to that other party;
(f) that other party ceases, or threatens to cease, to carry on business; or
(g) one party giving the other party thirty (30) days prior written notice.
7.2 For the purposes of clause 7.1, a breach shall be considered capable of
remedy if the party in breach can comply with the provision in question in all
respects other than as to the time of performance (provided that time of
performance is not of the essence).
7.3 Any waiver by either party of a breach of any provision of this Agreement
shall not be considered as a waiver of any subsequent breach of the same or
any other provision thereof.
7.4 The rights to terminate this Agreement given by this clause shall be without
prejudice to any other right or remedy of either party in respect of the breach
concerned (if any) or any other breach.
7.5 Upon termination by either party all outstanding referral fees due to the
Referrer at that time shall be settled in full within fourteen (14) days.
8. Consequences of Termination
Upon the termination of this Agreement for any reason:
(a) Referrer shall cease to promote, market, advertise or solicit clients for
the Services;
(b) the provisions of clause 6 shall continue in force in accordance with
its terms;
(c) Referrer shall have no claim against the Servicer for compensation for
loss of rights, loss of goodwill or any similar loss (except unpaid commission);
(d) subject as otherwise provided herein and to any rights or obligations
which have accrued prior to termination, neither party shall have any further
obligation to the other under this Agreement.
9. No Rights under Contracts for Third Parties
A person who is not a party to this Agreement shall have no right under any law to
enforce any of its terms.
10. Arbitration and Proper law
The parties shall use all reasonable endeavours to resolve any dispute amicably and in
good faith.
This document is governed by and are to be construed in accordance with the laws of
California applicable therein.
Each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of
the courts of California (and any court of appeal) and waives any right to object to an
action being brought in those courts, including on the basis of an inconvenient forum or
those courts not having jurisdiction.
11. Notices and service
11.1 Any notice so served by hand, e-mail or post shall be deemed to have been
duly given:
a. in the case of delivery by hand, when delivered;
b. in the case of fax or electronic mail on a Business Day prior to 5.00 pm, at the
time of receipt ;
c. in the case of prepaid recorded delivery, special delivery or registered post, at
10am on the second Business Day following the date of posting
provided that in each case where delivery by hand or by e-mail occurs after 5pm on a
Business Day or on a day which is not a Business Day, service shall be deemed to
occur at 9am on the next following Business Day. References to time in this clause are
to local time in the country of the addressee.
11.2 The addresses of the parties for the purpose of clause 11.1 are as follows:
Servicer
[insert your name/name of your company]
Address: California
United States of America
E-mail: [insert email]
For the attention of: [insert name of your representative]
Referrer
[insert name of client]
Address: California
United States of America
E-mail: [insert email]
For the attention of: [insert name of representative]
As witness this Agreement has been signed by the duly authorized
representatives of the Parties the day and year first before written.
SIGNED by )
for and on behalf of [insert your name/name of
your company] )
__________________
SIGNED by )
for and on behalf of [insert name of client] )
__________________
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